Transcript of Module 2A Public Hearing on 01 February 2024
(9.59 am)
Lady Hallett: Mr Dawson.
Mr Dawson: Good morning, my Lady.
This morning’s witness is the Right Honourable
Alister Jack DL MP.
Mr Alister Jack
MR ALISTER JACK (sworn).
Questions From Lead Counsel to the Inquiry for Module 2A
Mr Dawson: You are Alister Jack?
Mr Alister Jack: Yes.
Lead 2A: You’ve helpfully provided a witness statement to
the Inquiry under reference INQ000360600. It’s dated
29 November 2023. Is that your witness statement?
Mr Alister Jack: Yes.
Lead 2A: Have you signed it?
Mr Alister Jack: Yes.
Lead 2A: Do the contents of that statement remain true and
accurate as at today’s date?
Mr Alister Jack: Yes.
Lead 2A: The Office of the Secretary of State for Scotland also
provided a further statement to the Inquiry under the
name of Laurence Rockey, who is the director of the
Office of the Secretary of State for Scotland. It was
dated 4 August 2023 and is under reference INQ000232507.
Are you familiar with the contents of this statement?
Mr Alister Jack: Yes.
Lead 2A: Thank you.
You have been a member of the UK Parliament for Dumfries and Galloway since 2017?
Mr Alister Jack: Yes.
Lead 2A: You are the Secretary of State for Scotland and have been since July 2019?
Mr Alister Jack: Correct.
Lead 2A: Before holding that position, you served as parliamentary private secretary to the Leader of the House of Lords, Assistant Government Whip and Lord Commissioner of Her Majesty’s Treasury?
Mr Alister Jack: Correct.
Lead 2A: Mr Jack, can I just confirm with you that you had been scheduled to give evidence to the Inquiry last Thursday, 25 January, but due to a family bereavement we required – you were unavailable on that day and we required to rearrange your evidence for today?
Mr Alister Jack: Correct.
Lead 2A: My condolences.
Mr Alister Jack: Thank you.
Lady Hallett: And mine.
Mr Alister Jack: Thank you.
Mr Dawson: I want to begin by asking you some questions about the role of the Secretary of State for Scotland.
In your statement at paragraph 3 you say that in that
role you act as Scotland’s voice in Whitehall and
represent the interests of Scotland at Cabinet. Is it
fair to say that you are Scotland’s main representative
in the United Kingdom Government?
Mr Alister Jack: Yes. And could I just – my Lady, could I just, before
I give my evidence, just express my sadness for those
that lost their lives during the pandemic, and also
express my condolences to those who were bereaved, who
lost loved ones.
And to answer your question, yes.
Lead 2A: You also say at paragraph 3 that you champion the
UK Government in Scotland, and advocate for the
UK Government’s policies in Scotland.
Is it fair to say, then, that you are the
United Kingdom Government’s main representative in
Scotland?
Mr Alister Jack: Yes.
Lead 2A: You say also that the Scotland Office is not
a policymaking department. How does that work in
practice as regards the role which it plays in Scottish
affairs?
Mr Alister Jack: So the Scotland Office’s role is to be the defender, if
you like, the safeguarder of devolution. And it’s also
the Scotland Office’s role to work across Whitehall – the lines of devolution are sometimes blurred, the understanding of Whitehall departments as ministers change can often – they often need, you know, as they’re bringing legislation forward, direction from us on how devolution plays out, and respecting it, which is very important.
That’s – I mean, we have many roles within the Scotland Office, but within Whitehall we are always, and my job is always to press the case to get the best deal for Scotland, but also, when we’re making legislation across the UK, to make sure we don’t cut across the devolution settlement. And likewise, through section 33 and section 35 of the Scotland Act, my job is to make sure that the devolved administration in Scotland doesn’t either stray into reserved areas with their legislation, or indeed, as we saw in January last year when I used a section 35 order for the first time in the history of devolution, they go and cut across existing UK or GB-wide legislation.
Lead 2A: Thank you.
As far as the respective responsibilities of the Scottish Government and the UK Government in relation to Scottish affairs in the pandemic are concerned, we have heard that some of the areas, some of the boundaries were perhaps blurry at times. Would you agree?
Mr Alister Jack: Yes, I think – I think that was inevitable with the nature of public health being devolved.
Lead 2A: It’s perhaps the result of public health being devolved but also the all-encompassing societal nature of the virus, insofar as it impinged on almost every area of our lives?
Mr Alister Jack: Yes, the virus – I mean, the virus knew no boundaries, and within the United Kingdom I was always keen that wherever possible we were aligned, and a lot of the effort I put into it was to try to have an aligned response across the UK. And, as I say, you know, I – there was much debate with the Scottish Government around the “border”, as they called it. Well, I mean, to me, and I said this many times then, it’s a geographical border, not a physical border, and certainly the virus didn’t respect any borders. So I wanted us to be aligned as much as we possibly could be, understanding that under the public health response, which is the route that we went down, the public health was devolved to all the administrations.
Lead 2A: Before the pandemic struck, it would have been predictable, would it not, that a viral threat of this general nature would not respect man-made boundaries like borders or political constitutional settlements; is that fair?
Mr Alister Jack: That’s very fair.
Lead 2A: What efforts were made in advance of the pandemic in order to try to clarify the respective areas of the responsibility of the Scottish Government and the UK Government in the event that such a pandemic would hit?
Mr Alister Jack: So I think that was an area that could have been better prepared for. I – obviously the devolution settlement happened in 1999. I don’t – I think that would be one area that hadn’t been prepared for. There was, within schedule 5 of the devolution settlement – there is, should I say, the reservation of emergency powers, the Civil Contingencies Act is reserved, health and safety is reserved across the United Kingdom, and maybe we could have used one of those to deal with the pandemic response. We didn’t, we went with the devolved public health position.
And I think – I would hope – and I think it’s in my recommendations in my witness statement – I would hope that we can plan better for another such event, where we have a more centralised approach to our response, which will reduce the confusion that we saw with different rules. That I didn’t think made much difference to the outcomes, and the statistics prove that, different rules for the sake of it, confusing the public. I think we need to move away from that, have more of a centralised response and use the devolved legislation for the delivery of that centralised response, and that would be a recommendation I have for the future.
Lead 2A: Do I take it from your suggestion that there were different rules for the sake of it that that’s your assessment of the Scottish Government’s approach to its public health responsibilities?
Mr Alister Jack: I felt very strongly that the Scottish Government were – we would meet with them and tell them what our plans were to – you know, in terms of as we moved the rules and regulations, and I felt that they absorbed the information and then worked out how they could do it just slightly differently, and I felt that that was a political manoeuvre on their behalf. I think I’ve said that in my witness statement as well.
Lead 2A: We’ve heard a considerable body of evidence from ministers within the Scottish Government who would suggest that your assertion that you made clear to them in advance what the UK Government’s position was going to be was simply inaccurate. They would – they have often complained in their evidence that they didn’t know or understand the UK Government’s position as regards what restrictions, for example, it intended to impose till the very last minute.
Mr Alister Jack: Well, these situations are dynamic, and we did have officials talking to officials on the way through to coming to those meetings. We then had meetings where we agreed our position and then we put forward as our spokesman at those meetings – because, remember, we’re meeting ministers or First Ministers from all the devolved administrations – we are – we would – the Minister for Intergovernmental Relations, Michael Gove, would have been the spokesman at those meetings and we intended to make clear what our proposal was. We hoped that they would follow our proposal.
If there was a misinterpretation of whatever we’re discussing that’s when I would often step up and try and straighten what I thought was the position that we were – we were trying to get over, if it was being I felt misinterpreted or misunderstood.
But at all times we were giving the information of how we felt the regulations should be changed and not a lot of information came back the other way. The – particularly from Wales and Scotland. They waited to – they didn’t tell us what they were proposing to do. Because, obviously, it was devolved, we had to respect that, but we always knew it would be something similar but just slightly different, and that’s why I said “for the sake of it”.
Lead 2A: Could I perhaps give you an example, Mr Jack.
In May of 2020, it’s, as I understand it, the Scottish Government’s position that the Prime Minister gave the strong indication at a meeting with the Scottish Government that the UK Government intended to stick with the message that people should stay at home, but that in fact at the very last minute, unbeknown to them, he decided to change the tenor of the message and indeed the tenor of the strategy from Stay at Home to Stay Alert. What’s your comment on their assessment of that situation?
Mr Alister Jack: Well, on that I think – I think the Scottish Government have a fair point. I think it was a matter of regret that we trailed Stay Alert in the papers the day before, and that – there was, at that point, to go a step further, there was a – there was a level of mistrust sort of baked into the system, with – after what had happened on March 12, the COBR meeting, where the First Minister had gone out and announced quite a lot of things in her 3 o’clock statement. We felt that broke the memorandum of understanding, paragraph 12, which states that, you know, we have a sort of duty of confidentiality amongst us.
And that – that was the day that – on the back of that meeting then, I went to Edinburgh in the evening and met with Jeane Freeman. I was with her for I think two hours. For one of those hours the Health Secretary, Matt Hancock, was with us, that meeting on March 12.
Another thing that had happened which came to light in May at that meeting was that, despite being with the then Health Secretary for two hours, at no point did she mention that they had discovered an outbreak at the Nike conference in Edinburgh. The Health Secretary, and I confirmed this with him yesterday afternoon, discovered that when the newspapers contacted him some time later.
So, you know, these – you can understand there was a feeling – with each side there was – from that – well, let me put it that way, from that meeting then, going forwards, we were cautious, because we didn’t want announcements to be released early or to jump the gun before everything had been agreed across Whitehall. And I think that speaks to what happened with the Stay Alert statement, it was just – it was part and parcel of us being cautious as we announced things.
Lead 2A: Mr Jack, would it be fair, given that explanation, to characterise the way in which the UK Government and Scottish Government interacted during this unprecedented medical emergency as tit-for-tat or children squabbling with each other?
Mr Alister Jack: No, I don’t think that’s fair, but I think it – what it characterised was that we – you know, as you said at the beginning, my job is to go out and strengthen the United Kingdom and sustain the United Kingdom, and I do that every day of my working life. The First Minister’s job, and I’ve said this at the despatch box and on other occasions, is she at the time saw her job, as the leader of a nationalist government, to break up the United Kingdom. That’s what the Scottish National Party exists to do. And so it was inevitable that there would be tensions – and there always are in government. Devolution works very well, but it works very well when governments want to work together. When one government wants to destroy the United Kingdom and destroy devolution, then there are tensions. So those tensions existed before the pandemic, during the pandemic and they exist now today.
Lead 2A: You will be fully aware, no doubt, Mr Jack, that the former First Minister of Scotland, in what might well be described as an emotional passage of her evidence, described yesterday that, despite the fact that she believed in Scottish independence to her very core, she was, in this medical emergency, able to put aside those political convictions and prioritise the health and safety of the people of Scotland. Did your pre-existing assumption about her political convictions result in you failing to be able to believe that she could do that?
Mr Alister Jack: I didn’t – I watched that yesterday and I saw that passage and I don’t believe – I didn’t believe it for a minute. I mean, I looked at that passage and I’ve thought back in my experiences and I looked at her performance and I thought she could cry from one eye if she wanted to.
Lead 2A: Mr Jack, you mentioned a moment ago, and you indeed mention in your statement, that UK departments at times have a limited understanding of the devolution settlement; is that fair?
Mr Alister Jack: I think – I think there’s often clarity required – it’s very complicated, the devolution settlement, and there’s often clarity required, and that comes from my office, where we have the Advocate General, and that can often be in legal – a legal sense, or we will look when we’re doing – for instance, at the moment it’s the vaping Bill, we’re looking about concurrent – or mechanisms for the Scottish Government. So this is happening all the time where – on environmental matters, that’s another very grey area within the devolution settlement – we’re constantly working with the Scottish Government as to how that works.
And it’s particularly so more complicated now because of the UK Internal Market Act, which has the principles of mutual recognition and non-discrimination, so we’re – on a weekly basis officials are meeting with the – meeting the Scottish Government to discuss the impact of decisions within the U – I mean, obviously the – recently the most significant one was the deposit returns scheme and how that impacted a single drinks industry across the UK, and I stepped in quite heavily on that one. But I had to do that because we had to protect a single drinks industry across the UK.
So now with the – in the world outside the European Union and with our own single market, which is so important to Scotland, and this is the last point I’ll make on this, it’s – 60% of our trade is with the rest of the UK, it is important that we work with departments taking decisions to – to protect the devolution settlement.
Lead 2A: You describe yourself as a champion of devolution; is that correct?
Mr Alister Jack: Yes.
Lead 2A: Is it the case –
Mr Alister Jack: Well, I don’t like – I don’t like the alternative.
Lead 2A: You described a moment ago the legislative arrangements that were put in place at the beginning of the pandemic, which of course built on the existing devolution settlement. Public health was a matter which was devolved to the Scottish Government; yes?
Mr Alister Jack: Correct.
Lead 2A: And –
Mr Alister Jack: And that was reflected in the work we did on the Coronavirus Act. And when the Scottish Government produced their Coronavirus Act, I – instead of taking 30 days, as is normally the legal process before it goes for Royal Assent, I fast-tracked it.
Lead 2A: The Coronavirus Act, the UK Parliament Coronavirus Act, accords, in its schedules, powers, given the public health route that you described the UK Government having decided to take, to the Scottish Government to impose restrictions in the interests of public health during the course of the crisis; is that correct?
Mr Alister Jack: Correct.
Lead 2A: Therefore, matters were devolved to the Scottish Government and the Scottish Parliament, who had the ability to manage the pandemic in Scotland in the way that they saw fit?
Mr Alister Jack: Correct.
Lead 2A: Is that a fair assessment?
Was it the predominant view within the UK Government, despite those powers having been accorded by a UK Act of Parliament, that the course being taken by the UK Government to the management of the pandemic was somehow the orthodox one and therefore, despite those powers having been accorded to the Scottish Government and Parliament, any divergence from it was a divergence from the orthodox position?
Mr Alister Jack: No, we didn’t take that view at all, because we recognise – we respected the devolution settlement. It was just – we felt it was at times quite frustrating that we had minor changes to the overall structure of the regulations which caused confusion and – for certain people. And, you know, those – especially as we came – when we were out of lockdown and we had regulations throughout the summer and autumn of 2020, people were moving around the UK again, and – and I particularly feel it living in Dumfries and Galloway, where people are moving backwards and forwards across the border, we just felt it would have been better for all if we were following the – aligned on the restrictions.
Lead 2A: But you had accord – the UK Parliament had accorded the power –
Mr Alister Jack: Yes.
Lead 2A: – to the Scottish Government and Parliament to take a different approach, had it not?
Mr Alister Jack: Yes, and I say in my recommendations that I think in future that would be something that should be looked at again. Respecting devolution as much as the delivery of – of what had to be done, in whatever the emergency was, would be – would respect devolution, but the decision-making we should all come together to make the decisions, would be my position.
And an example of – if I go back into that period that I mentioned, we proposed tiers 1, 2 and 3, and the Scottish Government had moved to this, I thought, unrealistic zero Covid strategy, elimination, eradication, so they decided to have levels 0, 1, 2, 3. Again, confusing. And – and level 0 still wasn’t zero, it was still wearing masks for the foreseeable future. And we had this position where, you know, those getting on the train in Glasgow were taking their masks off just north of Carlisle, and coming back up from Euston, as I often did on the train, and everyone coming north of Carlisle pulling the trains off – masks off, sorry, in the same carriage. You know, it was sort of farcical, really. And it sort of spoke to me about some of the, you know, just unnecessary – it achieved nothing, it just spoke to me about unnecessarily affecting people’s behaviour. And of course it impacted on things like hospitality. You know, it had – these things have impacts and they had impacts on the economy.
Lead 2A: Just to be clear with you, as a matter of our understanding of the timeline, you mentioned that there had been – there were tree tiers in the UK Government strategy, that is of course correct, there were five levels in the Scottish strategy, you seem to have –
Mr Alister Jack: Sorry, four – 0, 1, 2, 3, 4, you’re absolutely right.
Lead 2A: You seem to have elided, Mr Jack, the zero Covid period which occurred in Scotland in the summer of 2020 with the announcement of the levels scheme, which in fact didn’t happen till October 2020. So those were different time periods. Is that your –
Mr Alister Jack: Well, the – so the zero Covid strategy ran from the summer of 2020. It was actually only finally dumped in the spring of May 2021, the sort of elimination strategy, and we had it – we were trying in the summer of 2020, in my witness statement I cover it, to get – start to plan directions for people for Christmas, because we know within the United Kingdom people travel for Christmas, and we – it took months for us to agree with the Scottish Government a Christmas statement because they were keen to get their elimination strategy into the Christmas statement, and we obviously didn’t agree with that and the then Chief Medical Officer, Sir Chris Whitty, said to me that it was completely unfeasible, an elimination strategy, not because Scotland was part of the United Kingdom but because there had been no elimination of a virus in the history of the human race other than smallpox, and that was – the elimination worked because there was a sterilising vaccine and we didn’t have a sterilising vaccine.
Lead 2A: There is, of course, scientific evidence that would tend to suggest that the virus was in fact eliminated from Scotland, on the basis that the original strains which caused the first wave in Scotland were completely – completely died out. Are you aware of that evidence?
Mr Alister Jack: But – but it – but the small – smallpox was eliminated, whereas –
Lead 2A: Obviously we’re more interested in Covid –
Mr Alister Jack: Well, no, I know, but the point is the point you make is not relevant because the virus mutated. Smallpox was mutating when it was eradicated. This – Covid was mutating and it was not eradicated.
Lead 2A: Well, what’s wrong with a strategy that seeks – whether it seeks elimination or maximum suppression of the virus? Is that not a laudable aim?
Mr Alister Jack: Well, it didn’t make any difference to the – to the statistics in terms of how Scotland was performing against the rest of the United Kingdom. There was a misleading assertion from the then First Minister that the prevalence in Scotland was five times lower than the rest of the UK, but the statistics authority came – you know, came out and said that was completely untrue. And so, you know, it was – this mistaken information was guiling the public into believing that the elimination strategy was working; it wasn’t working at all and the details show that.
Lead 2A: You have asserted, Mr Jack, that the decisions as regards the restrictions of the Scottish Government were politically motivated. Is that your position?
Mr Alister Jack: Yes. A lot of them, yes.
Lead 2A: You have asserted that differences between the Scottish Government’s restrictions plan and the UK Government’s restrictions plan were for the sake of it; is that right?
Mr Alister Jack: Yeah, I think – I think – I don’t think there was any … I don’t think it was achieving anything that was necessarily being successful in suppressing the virus, it was just to appear different.
Lead 2A: Did you seek to understand the rationale behind these restrictions, which you appear to have assumed were different from the UK Government’s position for the sake of it?
Mr Alister Jack: Yes, I mean – I mean, we obviously – we – we looked at – in detail at the difference – but it was – you know, we’re talking about differences about – you know, I might be being flippant here and not entirely accurate, but it was the – you know, whether you have six people or eight people in your garden, you know, when we’re outside and there’s fresh air blowing around, whether you – whether they were allowed to go into the house and – to use the loo or not, and on it went. These were – these were – they were things on the margin that we just – didn’t seem to be effective in suppressing the virus. And we know that the virus moved broadly across the UK in – in waves, that showed that its impact was not – by any devolved administration was not suppressed.
Lead 2A: But you personally, did you make efforts to try to understand why it was there were differences in the Scottish Government’s approach to that of the UK Government?
Mr Alister Jack: No, I fully understood, I didn’t have to make any effort to understand.
Lead 2A: You fully understood?
Mr Alister Jack: I fully understood that it was being done to appear different to the UK Government.
Lead 2A: The reason I ask is because in his evidence to this Inquiry, the former Deputy First Minister Mr Swinney said that he experienced no tangible presence from you in any aspect of the work handling the pandemic in Scotland. He was asked, when he gave evidence, whether he had made efforts to engage you in the pandemic response and he answered:
“I think the … the short answer is probably no, because there was no real value in it. Because, as I explain in my witness statement, if the Scottish Government had a problem with the UK Government, the best way to solve it was to go directly to the person in the UK Government, and indeed we had interlocutors who were quite helpful in trying to help resolve these issues. In my experience, the Secretary of State for Scotland would have contributed nothing of any useful value in assisting us in that process.”
Is that an accurate reflection of what you did on behalf of the people of Scotland during the course of the pandemic, Mr Jack?
Mr Alister Jack: No, absolutely not. I mean, let’s put some context on this. The former First Minister and the former Deputy First Minister, I’m not, you know, on their Christmas card list. They were pretty – I mean, I – I ended up in court with them four times – well, three times, and then the fourth one was the gender recognition, but I won on all occasions. John Swinney on the section 33 and something he was dealing with, and then there was the Supreme Court case that we won, and obviously there was the section 35. And then he and the First Minister were gone shortly after.
And I am not – they’re not my fans, and I understand that, but to be clear I – I put in a lot of work running into meetings. As I said earlier, I met with Jeane Freeman on 12 March, Matt Hancock and I met that evening – not that we heard anything about the outbreak that they knew about at the Nike conference in Edinburgh in February. I had – I attended many – all the Covid-O meetings, I attended the First Minister calls. I spoke up, for instance, on vaccines and vaccine delivery. And when the First Minister was saying there was a shortage of vaccines I was – I spoke to the vaccine minister, I established there was no shortage of vaccines for Scotland, I published every week the number of vaccines available. The – then – we can see how many vaccines were being administered. It proved that there was no shortage of vaccines.
On Covid passports I tried to get us all on the same page. They were reluctant, they wanted to have a Scottish vaccine passport, and they said the architecture and structure of the NHS software meant they couldn’t do that. But, again, I was pressing that because I felt if you had a – if you moved from Scotland to England you wanted your vaccine passport to work wherever you lived and to go travelling. And there were many areas where I pressed, on international travel, on borders. I pressed back on the idea there was a physical border between Scotland and England: we’re one common travel area, it’s just a geographical border. And the pushbacks or the encouragement to get alignment was not well appreciated.
And to your point about going direct to Whitehall departments, since 2011 they’ve always gone direct to Whitehall departments because they want – they don’t like the Scotland Office and they don’t like my powers and they make that very clear. And all that happens is the Whitehall departments come straight back to us. So the strategy does – I mean, it’s back to the tensions I talked about earlier – their strategy doesn’t work, because the Whitehall departments immediately refer to us for guidance and advice and – and so – and so we go on.
Lead 2A: In fact Mr Swinney’s wasn’t quite as you describe, because his position was that it was only you that were the problem. He in fact made quite clear that he considered there to have been good relationships between the Scottish Government and the Scotland Office under your predecessor’s position?
Mr Alister Jack: Yes.
Lead 2A: So –
Mr Alister Jack: Can I pick up on that?
Lead 2A: Yes, you certainly –
Mr Alister Jack: My predecessor found – experienced exactly the same as me and when I took over in July 2019 and discussed with him the role. He made the very point to me that I’ve just made to you. So I’m not sure he would agree that his position was respected by the Scottish National Party or the Scottish Government at that time.
Lead 2A: Given, Mr Jack, that you represent and speak for the Scottish people, and no doubt seek to act in their interests, would you agree with me that it may well not really matter in their view the rights and wrongs of the particular regulations or restrictions and who’s diverged from whom? They may interpret your evidence as an indication that during the course of the pandemic there was a complete lack of any proper intergovernmental relation between the Scottish Government and the UK Government?
Mr Alister Jack: The health secretaries across the United Kingdom met every week, sometimes more than once a week. The CMOs and the CSAs, the scientific and the medical officers, met again once a week and sometimes, often, more than once a week. Covid-O, Covid operations, met – its predecessor, the ministerial implementation group, met weekly – I was at those meetings – the – and we had representations from the devolved administrations at those meetings. From I think it was June 2020, maybe July 2020 onwards, we also had a weekly meeting with – on a Wednesday evening, 5 o’clock, with the First Ministers of the devolved administrations. That call would last an hour – and so the idea that we weren’t communicating with them is, you know, ridiculous.
Lead 2A: I suspect people may be more interested in the effectiveness of the communication rather than the communication itself. How effective was the communication in light of the views that you’ve expressed about the UK Government’s position on the Scottish Government’s restrictions, regulations and management of the pandemic?
Mr Alister Jack: Well, as I said, we – we – we told them what we were proposing in terms of restrictions or regulations, but – but in the areas where it was devolved we respected their right to diverge. We – we didn’t – we didn’t think it was a good idea, we tried to get alignment, but we were respectful of the position.
Other meetings were about other things, like, for instance, one of the things my office was heavily engaged in was – and my role is to endorse them – is military assistance for civil authorities requests, and there was – a huge amount of work went into, whether it was the roll-out of the vaccine, delivering testing centres, delivering PPE, emergency situations, getting someone off an island who was in a coma, et cetera, et cetera. Those things happened through my office. And when there was a real demand and a stretch on the army, because they were wanted in Wales and England as well, I would press hard with – directly with the Secretary of State for Defence to make sure that Scotland got all the soldiers and – and army personnel they required.
So these things were going on the whole time. The idea that there wasn’t any communication or help from the UK Government is – is wrong. And actually if you look in my witness statement, my letter on 2 February 2021 for the vaccine roll-out, I wrote to the Scottish Government and offered military help because the vaccine at that – roll-out at that time was going more slowly than it was in other parts of the UK and I wanted to speed it up.
Lead 2A: What notice was given by you or the UK Government to the Scottish Government about the introduction of the Eat Out to Help Out scheme?
Mr Alister Jack: Again we – it was discussed – it was discussed at one of the Covid-O meetings. And as to – I – as to the amount of notice we gave them, I couldn’t – I mean, I could write to you on that, I can’t remember.
Lead 2A: In her evidence the First Minister has said she wasn’t told about it; is that –
Mr Alister Jack: It’s possible. The health – I would expect we discussed it with the health minister.
Lead 2A: In her evidence, Ms Forbes, the Finance Cabinet Secretary, also said she didn’t know about it.
Mr Alister Jack: Right.
Lead 2A: Is that correct?
Mr Alister Jack: Well, I – Eat Out to Help Out was done by – was a Treasury initiative –
Lead 2A: That’s correct.
Mr Alister Jack: And I – I would have to look at the details of who was told when, to – and write to you on that.
Lead 2A: But did you tell anyone about it?
Mr Alister Jack: I don’t recall telling anyone about it, no. I – I don’t recall.
Lead 2A: At the time when the Eat Out to Help Out scheme was introduced directly by the UK Government in Scotland on 3 August 2020 –
Mr Alister Jack: Yeah.
Lead 2A: – Scotland was, in accordance with your evidence, still pursuing its elimination strategy, as you understood it; is that right?
Mr Alister Jack: Yes.
Lead 2A: That strategy sought to try to deal with the economic harm of the lockdown by seeking to try to revitalise business and redress the balance, I think, between the economic harm and the harm done by the virus; that was the theory behind it, I think.
Mr Alister Jack: Yes, the harm was to the hospitality trade, and the hospitality trade had suffered a lot of harm, and they very much welcomed Eat Out to Help Out.
Lead 2A: Yes, in her evidence Ms Forbes recognised that there could be economic advantage associated with the concept.
Mr Alister Jack: Yeah. Well, there was.
Lead 2A: However, it was completely contrary to the Scottish Government’s management strategy of the pandemic at that time, was it not?
Mr Alister Jack: Well, they – you know, they could have – they could have stopped Eat Out to Help Out in Scotland, under the public health – they could have said “We don’t want the voucher system to be available in Scotland” at the time. They – I’ve got no recollection of them pushing back and saying “We don’t want that”.
Lead 2A: It was a direct UK action in Scotland, Mr Jack.
Mr Alister Jack: Well, it was, but – but the – the Treasury officials will have discussed it with the officials in the devolved administrations, and it will have needed to – you know, with the detail that went on behind it, it will have needed across-government work. I mean, it is a – it’s a question that I would ask of the Treasury and Treasury officials. But it won’t have come as a complete surprise and nor do I feel they were – the Scottish Government were bounced into it. I have no recollection at the time of them saying “This is a terrible idea and we disagree with it”, but may – but, that – you know …
Lead 2A: It seems logically unlikely that that could possibly have been their position when, as I think you accepted, the introduction or imposition of the scheme on Scotland was completely contrary to Scotland’s management scheme and strategy at that point?
Mr Alister Jack: But I don’t recall at the time anyone saying “We don’t want this scheme and it’s not welcome”. I have no recollection of having to defend the scheme at the time.
Lady Hallett: Could I just ask, Mr Jack, can you go back to – you say they could have stopped it. What, just by using their general powers to close pubs or restaurants?
Mr Alister Jack: Yes, yes. There were many restrictions put on the hospitality trade and they could have – I’m sure the – if they had they could have – or they could have said to the UK Government “We feel that this will bring too many people into the – into the hospitality trade”, for whatever reason. As it was, there were restrictions so, you know, within hospitality there were curfews, there was mask wearing to go – to get up from the table and go to the loo, the – you know, so they could have either imposed further restrictions or they could have said to the UK Government “That’s not one for us”. But I have no recollection of that happening or me having to defend it.
Mr Dawson: We’ve heard a considerable amount of evidence from a number of witnesses about the funding – the general funding arrangements that exist between Her Majesty’s Treasury and the Scottish Government.
Mr Alister Jack: Yeah.
Lead 2A: And indeed we’ve heard quite a lot of evidence about the specific way in which funding worked during the course of the pandemic. Generally the evidence tends to suggest that emergency funding awards were made by Her Majesty’s Treasury – of course a reserved matter – and that, in trying to ascertain how much would be given to Scotland, the general approach of applying the Barnett formula was generally the way in which it was done. Is that your understanding, broadly, of the way in which funding worked during the course of the pandemic?
Mr Alister Jack: Yes. Broadly.
Lead 2A: Yes.
You tell us in the statement, indeed, that the Scotland Office has a technical role in the administration of funds to Scotland, which is to ensure that the funds are transferred appropriately and that transfers are recorded correctly in the UK Government’s accounts; is that right?
Mr Alister Jack: Yes.
Lead 2A: So although these would be Treasury decisions, the money would effectively go through the Scotland Office and therefore through you; is that – is that correct?
Mr Alister Jack: Correct.
Lead 2A: To what extent, despite the fact that the UK Government had accorded clear powers to the Scottish Government to manage the strategy in terms of the schedules of the 2020 Act, did the way in which funding was allocated for that strategy to be implemented limit the Scottish Government’s policy freedom?
Mr Alister Jack: Well, the £14.6 billion of Barnett consequential, that came on the back of a record block grant, that money was entirely for the Scottish Government to spend as they saw fit. And I – you know, there was money that would have been Barnettised for support for culture and media and the arts in England. I think the first amount was about £70 million-odd but it went up to £97 million. There was money for hospitality support and – et cetera, et cetera. But that was Barnettised, it went to the Scottish Government. They didn’t have to spend it on culture and the arts, and some members – businesses in culture ad the arts would complain about that in the press and hospitality felt they didn’t get their fair share and on it went. But that’s – how the Scottish Government chose to allocate that money was entirely a matter for them, as is the way the block grant is delivered in Scotland. The block grant, £41.6 billion, goes to Scotland – the Scottish Government, and they decide how to carve up the pie.
Lead 2A: Yes. Why did the UK Government fail to provide the Scottish Government with advance clarity as to the nature and extent of funding which it would provide for the Scottish Government to spend in its pandemic management role?
Mr Alister Jack: Well, again, that’s a question for the Treasury, but my understanding is that each time we made an announcement, and I used to communicate these figures, and I would do it in interviews with the media as well, we would know what the approximate Barnett amount was, and we would declare that, so they would know what was coming.
Lead 2A: Until the summer of 2020, Ms Forbes told us that the figures that were projected were not figures that would necessarily result – would be the result of the funding given to Scotland because, in fact, what would come to Scotland would be the appropriate Barnett percentage of what was spent rather than what was projected.
Mr Alister Jack: Correct.
Lead 2A: She told us that that caused considerable difficulty in the management of the pandemic in Scotland?
Mr Alister Jack: Well, that’s – that’s how Barnett consequentials work, that’s how the system operates. And actually the fiscal framework has just been reviewed and the Scottish Government have agreed to a continuation of that.
Barnett is effectively a look-back on what was spent and how the division works, and then adjustments are made. So there’s constantly money going to the devolved administrations over and above the block grant, and then there will be adjustments made when you look back on what the spending was, and that will be – affect future – future payments, some will go up, some will go down. I mean, it’s – that’s the nature of the Barnett formula. That’s all - that’s not – it shouldn’t come as a surprise to Kate Forbes or anyone else because that’s always been the nature of the Barnett formula.
There was at the beginning though, I remember, you know, clear instructions as – the Scottish Government were given by, I think it was, Steve Barclay, who was the chief secretary to the Treasury, and he wrote to Kate Forbes a very good letter, which if you want – which we could send to you, where he made it very clear how – you know, what sums were guaranteed and what sums would be –
Lead 2A: Well, indeed, Mr Jack, I might be able to help you with that. What Ms Forbes told us was that there was in fact a very useful guarantee given by the chief secretary to the Treasury –
Mr Alister Jack: Yeah.
Lead 2A: – that they would get the Barnett consequentials on the projected spending irrespective of actual spend –
Mr Alister Jack: Correct.
Lead 2A: – but that that did not occur until the summer of 2020. My question was why did it not occur before then?
Mr Alister Jack: Well, that’s a matter for the Treasury.
Lead 2A: But you were intimately involved –
Mr Alister Jack: But the Treasury – but the Treasury – the Treasury determined the payments based on the calculations they’re doing, but there’s always a flow of funds – as I say, it’s a rolling flow of funds and the adjustments are made on the look-back. That’s how the Barnett formula works.
Lead 2A: We’ve heard from a number of ministerial witnesses within the Scottish Government that considerable efforts were made by them in the period when cases started to rise again, in around September 2020, to seek to secure guarantees from the UK Government that furlough funding would be made available in the event of the Scottish Government’s assessment that the situation merited further lockdowns. Were you involved in those discussions and why did those appeals go unheeded?
Mr Alister Jack: I was involved in those discussions with the Chancellor, and I felt that we were tackling the pandemic – from the Treasury’s perspective, furlough was a UK-wide policy, it supported 900,000 jobs in Scotland, it supported 137,000 self-employed jobs in Scotland, and I wanted that money to go directly to the businesses and the people, particularly the self-employed people, who needed – who needed that money. I wanted it to be a Treasury payment directly to them, because I felt that was the best way to go. I felt that – I felt, as I’ve said before, that the virus across the United Kingdom moved in waves, but – but furlough should be a UK-wide scheme, and it should be determined by the Treasury, who ultimately are responsible for the public finances, and remember we spent the thick end of £400 billion in our response, but it’s for the Treasury to determine what the nation can afford and how long furlough could continue for, and at what percentages, and I felt very strongly we should stick with that because we were talking about billions of pounds of support.
Lead 2A: Did that not effectively rob the Scottish Government of its ability to decide that there should be a lockdown because it had no guarantee that furlough, an inherent part of a lockdown by that stage, would be paid?
Mr Alister Jack: Well, furlough continued for a lot longer than anyone expected it to, and in that time the Scottish Government had the options to do whatever they wanted to do in terms of restrictions and lockdowns. But furlough – furlough lasted well into 2021, and it was … the support was, I felt, proportionate at the time, and – and I felt when furlough came to an end, it was – looking at how the vaccine had impacted the spread of the virus or the – how lethal the virus was, along with the contribution of antivirals, I felt the judgement of the Chancellor in winding down furlough when he did was the right judgement.
And as I say, we – you know, you’re balancing the economy with – with public health, and we – I think most people looking back on it will think fairly that we, that we extended furlough for a considerable length of time and it gave a huge support to people and financial support to people at a difficult time.
Lead 2A: Ultimately furlough was extended by the Treasury as a result of the fact that the Scottish Government went public with its position on 1 November 2020, which then led to the Prime Minister announcing that furlough from that point forward, at a time when there was of course a circuit-breaker lockdown in England, would be made available as a consequential. I’m interested in the period before that, Mr Jack, when you said you were involved in the discussion –
Mr Alister Jack: I was involved in –
Lead 2A: Could I finish my question, please.
Mr Alister Jack: Sorry.
Lead 2A: I’d be interested in the period before that, and what I would like to know is why no guarantees were given to the Scottish Government that if, in the exercise of its public health function, it deemed it necessary that there should be a lockdown, that furlough would be paid?
Mr Alister Jack: Well, we – I was involved in those discussions with the Prime Minister as I – sorry, I apologise for interrupting you – and the situation was at the beginning we – furlough was running for six months. It was coming – I think, from memory, it came to end at the end of October. We then were – there was deliberations obviously about how long to extend it for, and on what terms it would be extended. You know, there would have been different thoughts whether it should be at 80% or 70% or 60%, but it continued on the same terms at – when it was due for extension, but the Treasury obviously at that time were running the slide rule over it and coming to their decision.
But I was always clear in Cabinet that furlough – first of all, we needed to continue furlough for longer, and I was also clear in Cabinet that furlough would be – carry on being a UK-wide scheme, and we wouldn’t regionalise it, because I felt that route – if we went down that route – you know, then Andy Burnham’s wanting furlough for Manchester and Andy Street’s wanting furlough for Birmingham and on it goes, and everyone’s having to – well, different furlough schemes and coming up with different reasons as to why – you know, and the Treasury lose complete control of the public finances.
So I think we made the right decision at the right time but there was at no point – I think it was a bit of a manufactured grievance by the Scottish Government – there was at no point any reason that they couldn’t, if they had to bring in a lockdown, bring in a lockdown, because there was – we were never going to say “You’re in lockdown and we’re cancelling furlough”. I mean, that wasn’t how the Chancellor behaved, the now Prime Minister behaved, and it certainly wasn’t how I was going to behave.
Lead 2A: Well, why didn’t you just tell them that when they asked you about the position in September and October then?
Mr Alister Jack: Because in September and October we were working out which was the best scheme to go forward for the next phase. Furlough wasn’t the only scheme available and it – other European countries were doing other things. But, you know, there was no suggestion that we were going to ever leave any part of the UK in lockdown without furlough. That was never a suggestion.
Lead 2A: There was, of course, a firebreak lockdown in Wales which went on for 17 days from 23 October. The Chancellor of the Exchequer – Mark Drakeford, the First Minister of Wales, made a statement to the effect that the Chancellor of the Exchequer refused to fund the consequences of this public health decision taken in Wales, which he described as one of the most misguided decisions of the whole of the pandemic, saying that the Treasury was acting as a Treasury for England, not a Treasury for the UK. Was he correct?
Mr Alister Jack: Which date was that in October?
Lead 2A: 23 October is when the Welsh firebreak lockdown –
Mr Alister Jack: In 2020?
Lead 2A: 2020, that’s right.
Mr Alister Jack: But we had a furlough scheme.
Lead 2A: Well, that – his position is that that was not available and there was a refusal on the part of the Chancellor to extend it to Wales over that period.
Mr Alister Jack: Furlough?
Lead 2A: Yes.
Mr Alister Jack: In October 2020?
Lead 2A: That’s correct.
Mr Alister Jack: But we had furlough.
Lead 2A: That’s not his position.
Mr Alister Jack: Well, I don’t understand his position.
Lead 2A: If Scotland had wished to have a firebreak lockdown in the autumn of 2020, would it have had furlough made available to it?
Mr Alister Jack: Yes.
Lead 2A: Could I ask you some questions, please, Mr Jack, as I have of other witnesses, about your informal communications in the conduct of your business during the course of the pandemic.
In your statement you say that you use WhatsApps to communicate with your colleagues; is that correct?
Mr Alister Jack: Yes, yes.
Lead 2A: You say that you did not use WhatsApp to discuss the pandemic response in Scotland; is that correct?
Mr Alister Jack: Yes.
Lead 2A: What policies did you understand existed covering ministers in the UK Government with regard to the retention of information relating to their conduct of government business during the pandemic?
Mr Alister Jack: Well, I – I understood latterly that – I think you’re referring to WhatsApps and WhatsApp deletion in this question?
Lead 2A: Yes, that’s correct.
Mr Alister Jack: Yeah, no, well, the – the – I mean, the position’s quite clear. I, in 2021, with a 64 gigabyte phone, and no storage capacity on it, I asked a friend how I could increase my –
Lead 2A: Sorry –
Mr Alister Jack: Do you want me to answer this question?
Lead 2A: Just to – before we get to the actual process, I was just asking you about what your understanding was of the obligations. We’ve gone through with Scottish Government ministers the very specific obligations –
Mr Alister Jack: Yeah.
Lead 2A: – on them and I just wanted to understand, from a UK Government ministerial position, whether similar or the same obligations existed with regard to the retention of informal messaging?
Mr Alister Jack: Well, I wasn’t aware of any in 2021.
Lead 2A: I’m looking obviously at the period from January 2020 to April 2022, so over that whole period you weren’t aware of any or did you become aware of any?
Mr Alister Jack: Well, I don’t – I wasn’t – no, I was not aware of any that …
Lead 2A: And I think you were going on to tell us that there was a process by which you got rid of some of the messages –
Mr Alister Jack: Well, no, I didn’t – I didn’t delete some of the messages, no, I deleted all of them.
Lead 2A: Right.
Mr Alister Jack: I didn’t delete all of them from Matt Hancock, which – you have my messages from him – or Michael Gove, or Boris Johnson, I deleted all of them. I deleted all my What – because I had – 16 – I was told that 16 megabytes had become free on my phone, which, as I said, hit capacity, and there were lots of – you know, obviously photographs and whatever – you know, things that were blogging down the – making it – the WhatsApps – the WhatsApp storage capacity very demanding. And I deleted WhatsApps from my mother, my wife, my children, my friends. I mean, I just deleted all my WhatsApps. Because that created the capacity that allowed my phone to carry on. I now have a 512 gigabyte capacity phone and that’s made life a lot better, but at the time I didn’t think anything of it.
And – and I didn’t do it – just to be clear, I did not do government by WhatsApp. I’m a person who picks up the telephone or I go through – Michael Gove’s office was 30 metres from mine, I would pop through and have a meeting with him or vice versa, with a – with an official present. I’d pick up the telephone to Ben Wallace to press the case on a MACA – to get a MACA decision done quickly if I was in Scotland and he was somewhere else. That’s how I did – how I do my business, you’ve heard it probably from lots of people, but that’s genuinely how I do my business and those that know me know that’s how I do it.
Lead 2A: Right. So when you deleted the messages, just to be clear, your position is that you knew that there was nothing on those WhatsApp messages which could relate to your government business in the –
Mr Alister Jack: Well, I didn’t, I think – to be fair, back in 2021 that wasn’t really a consideration, so – but I just deleted it because I wanted my phone to work. And, as I say – you know, I know there is a WhatsApp group that I was a part of for a couple of days that – that – from Matt Hancock’s – Matthew Hancock’s WhatsApps you have the detail on that, and, you know, I’m happy to talk to that, but it was – that – I was only feeding in what the Scottish Government’s rules and regulations were to that – to that WhatsApp, so they could decide how to proceed.
Lead 2A: I was interested to know, Mr Jack, when you deleted the messages in 2021 to make the room on your phone as you’ve explained –
Mr Alister Jack: Yeah.
Lead 2A: – whether you took the time to work out whether there had in fact been any informal messaging, via WhatsApp or otherwise, using your devices, which would relate to your role in the management of the pandemic in the United Kingdom or Scotland?
Mr Alister Jack: Well, I know – because I didn’t do government by WhatsApp and decision-making by WhatsApp, I knew that that wasn’t a concern. And when I deleted the WhatsApp group I referred to, the one that – that Matthew Hancock and I were on, I read through it and there was – my contribution to it was purely technical and it was of no relevance.
Lead 2A: So if you deleted –
Mr Alister Jack: And nor was a decision taken.
Lead 2A: Yes. If you deleted that group, which of course was related to the pandemic management, can we be sure that the other messages you deleted did not contain –
Mr Alister Jack: Yes.
Lead 2A: – any information that –
Mr Alister Jack: You could –
Lead 2A: If I could just finish the question.
Mr Alister Jack: Sorry.
Lead 2A: Any information that would be salient to the way in which you conducted government business during the course of the pandemic?
Mr Alister Jack: Yes.
Lead 2A: As regards the telephone conversations and individual conversations that you describe with other ministers, to what extent were the salient points of those conversations recorded on the corporate record of the UK Government?
Mr Alister Jack: So where I would speak to Ben Wallace about a MACA request or speak to Michael Gove or the Chancellor or the Prime Minister I would tell my private office about the conversation and what we may or may not have agreed or what we had disagreed on and that would then be fed in and would be reflected in the advice minute for any – ahead of any discussions for any Covid-O meeting or – or ministerial implementation group.
Lead 2A: Just –
Mr Alister Jack: I’m a delegator, I operated at all times with – with my office fully in the picture.
Lead 2A: Just to be clear, I think, when you answered those questions, you referred to some specific things like the MACA, which we know about, the Ministry of Defence aspect of things, is your response restricted only to those types of requests or to any government business in the course of the pandemic?
Mr Alister Jack: My response –
Lead 2A: Because in your response I asked you whether the salient details of those conversations, either in person or on the telephone, were recorded in the corporate record of the UK Government, and in your response you referred only to certain types of conversations, you said, for example, about the MACA requests. Does it – is it only about those types of requests or does your position as you reflected it apply more generally to the business you conducted, whether to do with MACA or anything else?
Mr Alister Jack: When – when I conduct business, I inform my office. So, for instance, in the – in last – in the last ten days I have had conversations with the Secretary of State for Northern Ireland directly about including Stranraer and Cairnryan in an investment zone for Northern Ireland, as we move towards Stormont hopefully being up and running again, and I had a conversation with Jeffrey Donaldson and I then come back to – speak to my office directly and inform them that I’m trying to have Stranraer and Cairnryan included in an investment zone for Northern Ireland as part of the – because it’s not possible to do a free port structure – and they then take that information and go back, officials to officials, whether it’s in DLUHC or the Northern Ireland Office, in this case – both DLUHC and the Northern Ireland – so investment zones are DLUHC, in Northern Ireland Office – obviously regarding the negotiations. They then go back and cement what I – what we – what I think we have agreed.
Lead 2A: I don’t think I’m any further forward in response to my question, Mr Jack. I’m simply trying to ascertain whether, in the conduct of all of your government business relating to the management of the pandemic –
Mr Alister Jack: Yeah.
Lead 2A: – you would, as you have described for the MACA requests, have made sure that the salient aspects of any conversations, personal or on the telephone, would be recorded on the corporate record?
Mr Alister Jack: And I said yes. I thought I’d answered that one, sorry.
Lead 2A: Thank you.
Mr Alister Jack: I wasn’t sure about your question, to be honest.
Lead 2A: It’s okay, thank you.
I’d just like to conclude by asking you some questions about a matter you’ve mentioned already, which is a matter, again, we’ve addressed with some other witnesses, which is to do with the internal border between Scotland and England during the course of the pandemic.
Mr Alister Jack: Yeah.
Lead 2A: Do you consider that it was within the competence of the Scottish Government effectively to close the border and tell people not to cross the border from Scotland to England?
Mr Alister Jack: No.
Lead 2A: To what extent – well, can you explain why that’s the case as a matter of legal principle?
Mr Alister Jack: Well, UK borders and Border Force are reserved within schedule 5 of the Scotland Act and we have a common travel area, which is very clear in the Scotland Act, and we are one United Kingdom – and I said before, the virus doesn’t respect borders, but –
Lead 2A: Do –
Mr Alister Jack: – we are –
Lead 2A: – to –
Mr Alister Jack: – I also said earlier, living in Dumfries and Galloway, many people will live in Carlisle and work in Annan or Dumfries or vice versa, you know, and they – they are just – that’s their life. And the border, to me, and I’m absolutely sure this is right, is that it’s a geographical border it’s not a physical border, so there is no border control.
Lead 2A: Yes, I understand the position. If it were to be the case that the Scottish Government had asserted that people could not cross the border, effectively closing the border, is your position that you understood they didn’t have the legal power to do that?
Mr Alister Jack: That – that was – that was our feeling at the time, was that the border had to remain open. I mean, obviously in a lockdown and a travel restriction area of maybe – or – or if there were travel restrictions of 5 miles, those just – those travel restrictions were relevant but – but, you know, if you lived in Coldstream and across the bridge in Coldstream was where you got your newspaper from, that – and your travel restriction was 1 mile, you could still go and get your newspaper. You know, and to – and I didn’t, I thought the whole border thing was – played very much to the trying to appear like Scotland was a separate country, a land apart. I felt that was the direction of travel that the Scottish Government were going down.
You know, the – and it became the case also when the First Minister decided that – or decreed that people should not travel to Manchester or Bolton. And the irony was the prevalence of the virus at the time was higher in Dundee, I think, than it was in Greater Manchester, and Andy Burnham – and I was on the call the evening we had the meeting, but Andy Burnham – you could have sold popcorn for Andy Burnham’s performance. He was not best pleased. And he won the argument resoundingly and the Scottish Government backed down very quickly. Because the reality was they couldn’t tell people they couldn’t travel to Manchester. That just – within the United Kingdom they did not have that power.
Lead 2A: As you’ve said, there were, of course, general examples of this at times when the Scottish Government said: the border is closed, full stop. And more specific examples: the border is closed if you’re travelling to certain places. And Mr Burnham has already given evidence about that in a previous module –
Mr Alister Jack: Yeah, I mean, it was just – that was about politics, it wasn’t about anything else.
Lead 2A: To what extent – you mentioned some discussions to which you were party, to what extent did you make the UK Government’s position clear in that regard, and how were these matters ultimately resolved? Because they did seem to occur more than once.
Mr Alister Jack: Well, we – we pushed – we just kept pushing back in discussions. I was quite vocal on the fact that it was a geographical not a physical border. But, you know, the Scottish Government had come up with a strategy, they thought it was going to play well to their audience, and – whoever that may be, and it – you know, it was a period that we went through but it wasn’t a time when – you know, it wasn’t – you know … relations were strained, as I’ve said before already, so it was just – just another thing where we were saying “Well, actually, you know, there is not a physical border, there will not be border checks and border control, that’s not happening”.
Lead 2A: I suspect, Mr Jack, if the Scottish Government were able to address your point, they might suggest that the audience to whom they were playing were the people of Scotland. Was that not entirely legitimate?
Mr Alister Jack: Well, I’m not sure everyone in Scotland would have been signed up to the idea, and certainly the people in – in – in the Scottish Borders and Dumfries and Galloway weren’t necessarily signed up if they needed to cross the border for business. You know, as simple as that.
Lead 2A: I’d like to ask you about a couple of passages which were included in the Scotland Office response to the Inquiry, where they make some suggestions about the way in which things might be done better in the future.
If we could look please at INQ000232507 at paragraph 126 and 127.
I’d be interested in your reflections on these passages, where it says paragraph 126, just the second half:
“In addition, UK departments drafted a large number of officials into the response from across the civil service, meaning that knowledge and experience of devolution often varied, even on a shift-by-shift basis. This was particularly the case in the early stages of the response but as the engagement structure settled and officers from the UKGG were deployed into the COVID-19 Secretariat, this improved greatly.”
And in paragraph 127:
“Embedding an understanding of the devolution settlements early and at the core of response structures will allow the UK Government to better engage the Scottish Government. Future planning should consider the inclusion of liaison officers from either the territorial offices of departmental devolution teams into UK Government departments leading the response to ensure that senior officials have devolution expertise available to them.”
This seemed to us to be a helpful reflection on some difficulties the UK Government had experienced and I was interested to try to explore, based on your experience of engagement with the Scottish Government, whether you agree with this proposal and how you would see that working.
Mr Alister Jack: Well, I do agree with it, obviously, and I think – I mean, the next emergency, national emergency may be very different, but if – if it were another – let’s just – because it’s an Inquiry about Covid, let’s imagine it’s another pandemic.
Lead 2A: Thank you.
Mr Alister Jack: I believe that the – we pulled together the devolved administrations into one centralised – with – with the UK Government – one centralised decision-making body, and we – we used the devolved powers and the mechanisms within devolution for delivery of response. But the response is agreed centrally, more joined up, if you like, than – than happened this time. I think this goes right back to one of your very early questions. And – and I think we – we could have done a lot better if the emergency response plan had – or – or whatever it’s called, the lead government department’s plan – if that had been designed with devolution in mind and around public health. I think – I think that would have been a better way – and that’s a recommendation I make – a better way would have been to be prepared for that and to have pulled everyone together.
And because it was a – you know, a terrible virus and it was destroying families and lives, it – it – absolutely, we would have made decisions collectively, I think. We would have been seen to make – we would have made good decisions collectively, because that’s the responsibility as public servants, that’s the duty that’s upon us.
Lead 2A: And – that’s a very helpful suggestion, Mr Jack, but if this suggestion, a practical suggestion, were to work, it would of course require both the Scottish Government and the UK Government to demonstrate a willingness and actually act in a way –
Mr Alister Jack: Yeah.
Lead 2A: – which sought to try to act in the best interests of the Scottish people rather than –
Mr Alister Jack: Yes.
Lead 2A: – their more parochial concerns?
Mr Alister Jack: Yes, and under – you’re absolutely right on that. And under schedule 5, you know, the emergency powers are reserved, and those reserved emergency powers should not be used, in my view, by the UK Government alone, it should be used by pulling together the devolved administrations and teamwork.
Mr Dawson: Those are my questions. Thank you, Mr Jack.
The Witness: Thank you.
Mr Dawson: There are some CP questions.
Lady Hallett: There are.
Ms Mitchell.
Questions From Ms Mitchell KC
Ms Mitchell: Mr Jack, I appear as instructed by Aamer Anwar & Company on behalf of the Scottish Covid Bereaved.
Mr Jack, I don’t wish to take up any more time than necessary of the Inquiry’s time in relation to WhatsApps, so my questions are very brief.
The first one of these is: when did you clear your messages?
Mr Alister Jack: Well, that’s in my witness statement. It was in November 2021, on 15 November – or the 17th – it’s in my witness statement.
Ms Mitchell KC: Thank you, and when you did that, did you consider the information that you held may be relevant to a possible future inquiry, and if so did you have any thought process about “Maybe it would be a good idea to save these to help me recall contemporaneous events”, et cetera?
Mr Alister Jack: No, I didn’t, I was quite keen for my – obviously, my phone to start working again. More importantly, I knew that I did not take government decisions by WhatsApp, and that will be borne out by the WhatsApps of ministers that you do have. You will see that that was not something that I was in the habit of doing and I certainly had not done.
Ms Mitchell KC: Well, we certainly have limited access indeed to some WhatsApp messages that you were involved in.
Mr Alister Jack: Yeah.
Ms Mitchell KC: But you gave evidence in your written statement, for example, that you recall sending messages to Cabinet colleagues about specific policy matters and I’m just wondering, if we could perhaps take it away from your specific circumstance of your phone not working, do you think it’s a good idea if these contemporaneous records are somehow available and kept to be stored so that in the event of a public inquiry those matters can be placed before an Inquiry?
Mr Alister Jack: I do, and I think if I could turn the clock back, knowing what I know now, I would have sought a different solution for my lack of storage capacity. I mean, I’m not – I’m a bit of a Luddite. I’m the only member of the Cabinet not to have any social media accounts. Okay. It’s not something I’m – you know, I – but that’s no excuse, the reality is, you know, I regret that I deleted my entire account. For a number of reasons. I regret it because of the Inquiry, I regret it because actually I hadn’t saved some sort of family photographs and bits and pieces that maybe I should have done, but that’s – that’s how it – that’s how it transpired because, as I said, I deleted absolutely everything to get storage capacity. In future, to answer to your question, it would – I think these matters – all matters relating to an event like this should be put on – should be recorded within, within the offices of the ministers, relevant ministers.
Ms Mitchell KC: Moving on, in relation to paragraph 29 of your statement – we don’t need to bring it up, it’s a question I simply want to ask you about it – you said:
“My Office would also assist and facilitate other UK Government departments with the task of consulting with and liaising with the correct contacts in the Scottish Government. For instance, early in the pandemic my officials helped source information from the Scottish Government as requested by the Department for Health and Social Care.”
Can you provide examples of what information the Department of Health and Social Care asked your office to obtain. What sort of information were they looking for?
Mr Alister Jack: Well, I will send that to you, what the – what requests were there, which are in my witness statement, I will send you the details.
Ms Mitchell KC: What I’m wondering is: are there, for example, specific examples where things could be done better by collating things, for example, on a database?
Mr Alister Jack: So I – I nearly gave you that answer but I’m not sure if that was what you were referring to.
I – we were – we were keen to have data, and I did press this case with – with Scottish Government ministers, we were keen to have data that was able to be used in an apples for apple – like – apples, pears for pears position across the UK. And if you remember the 10 o’clock news back in – during the Covid pandemic, the early stages of the Covid pandemic, it would say – the stats would come up, on cases and deaths, on the 10 o’clock news, and there would be an asterisk and it would say below “excludes Scotland”. I was very keen that we got the same information, recorded in the same way, on a UK-wide basis, and I think that was – that – that was certainly something that I was pressing on behalf of the Department of Health.
Ms Mitchell KC: Can I then ask you, in June 2020 the Scottish Government set out ten principles that it proposed the UK Government should follow to support the UK economy, and of course with that Scotland, and public finances as they began to recover from the impacts of Covid-19.
Did you do any work as a result of that document being made available? For example, did you consult on it or discuss it with your colleagues in the UK Parliament or seek implementation of any of those policies?
Mr Alister Jack: No.
Ms Mitchell KC: Can I ask you why?
Mr Alister Jack: Because it was a policy for the – for the – for the Scottish Government for Scotland and it was for them to implement, I didn’t want to interfere.
Ms Mitchell KC: I think though the document itself was about ten principles that it proposed not internally for itself but also for the UK Government.
Mr Alister Jack: Well, the UK Government had – the Treasury had their own strategy, the Chancellor had his own plans, and, you know, that – in terms of respecting devolution, you know, we were respecting devolution, but – but – but that – that broader position was, I would say, was broadly reserved. I mean, it’s always blurred lines within the devolution settlement but it was broadly reserved to the UK Government. But it was for – if the Scottish Government wanted to follow their – those economic plans that they had, which they want to do, that’s for them, but it wasn’t – it wasn’t for the – you know, the Treasury had their own plans.
Ms Mitchell KC: Yes, I think it wasn’t really – it wasn’t plans, it wasn’t specific plans, it was a group of guiding principles that they thought would be helpful to state to assist the UK Government to follow to support the UK economy and public finances –
Mr Alister Jack: Well, I mean –
Ms Mitchell KC: – not engage in –
Mr Alister Jack: – if – if we went through them one by one, we might find that quite a lot of them we were already doing anyway, and some of them we may have disagreed with, but I haven’t – without having them in front of me …
Ms Mitchell KC: I see, but did you do any work on them at the time? Like, did you think, “Oh, I should maybe speak to someone about these”, or “implement them” or – did that thought process come to you or did you simply not engage with –
Mr Alister Jack: The Scottish Government did not send it to me, and I did not do anything with it.
Ms Mitchell KC: The Inquiry has heard evidence from Mr Swinney, he was unaware of your concern about data being England-only when some UK decisions were taken. Were you involved in any part in trying to ensure the easy flow of data? Because we’ve heard quite a lot in Module 2 the difficulties initially, early, about data in Scotland not being able to be used by the UK Government. Did you form any part in trying to assist in that process?
Mr Alister Jack: Yes, I – I pressed and my officials pressed to standardise data across the UK. There has been a subsequent Bill in Parliament coming forward on data and I’m still trying to get us all on the same datasets going forward. Part of the – I mean, there was resistance from the Scottish Government, they wanted to measure – they measure the Covid deaths in relation to those that had contracted the virus differently, and we had to –
Ms Mitchell KC: I think by “differently”, do you mean in different timescales?
Mr Alister Jack: In different timescales, sorry, yes, you’re absolutely right.
And I was keen that we all got onto the same page. But, you know – because you weren’t comparing apples with apples, as I said earlier. But that wasn’t possible bec – and, as I say, ultimately it was devolved and therefore I had to respect that.
Ms Mitchell KC: How quickly were you able to act upon – it became clear pretty quickly that there were being UK decisions that needed to be made, with England-only data, and a problem with Scotland; how quickly was the Scottish Office, your office, able to react to that and to try to assist?
Mr Alister Jack: Well, we – it was a matter – I mean, it was a matter – in the early months it was an ongoing – you know, we were looking at this, the data, the CRIPs as they’re called, on a weekly basis, sometimes on a daily basis, and it was a matter of frustration that the Scottish data was not being submitted.
Ms Mitchell KC: You say in your statement – again, I don’t need it to be brought up, but I’ll just refresh your memory as to what was said, it said:
“My officials also identified that a PPE plan prepared by [the Department of Health and Social Care] did not dealing with the challenging issues of monitoring stock across the UK or the equitable distribution between the four nations and was ‘Whitehall centric’. They worked with Scottish Government officials to suggest amendments to make it work for all parts of the UK.”
Given we now know some of the difficulties that the UK Government has gotten into in respect of PPE, is this an example – the decision to, as it were, go their own way on PPE, is this not an example where each of the devolved administrations, Scotland in particular, as I’m speaking to you, made a reasonable choice to go their own way rather than it being a problem doing it themselves?
Mr Alister Jack: I, I wanted the – it to be equitable, the distribution of PPE across the United Kingdom, and I was concerned that due to the – if you like, the might of the – the broad shoulders of the UK Government Treasury, that – and PPE prices – remember I was long in business before I came into politics in 2017 and I understand supply and demand – and PPE prices were spiking, and I wanted the Treasury to be obviously responsible for the purchase of that PPE, which was one of – that’s what happened, but I wanted to be sure that the PPE was fairly distributed across the United Kingdom, and that the Scottish Government weren’t having to spend – you know, in what was an expensive market, spend money that I would rather have been spent on other things. So for that reason I pressed hard for the – for a – for a structure that made the distribution of PPE fair and equal.
Now, it’s very easy to say, well, that should have happened anyway, and it should have – and it did happen, and it’s – and it’s very possible to say that was the only thing that was ever going to happen, but it doesn’t change the fact that, you know, I – there were concerns relayed through officials to my office about fair distribution of PPE and rather than react afterwards, should it have not been the case, and by the way it wasn’t – it was distributed fairly, I got on the front foot and made sure that that was – rather like I did with the vaccines, the vaccines were stored in England, in –
Ms Mitchell KC: Well –
Mr Alister Jack: – in – you want to come on to that, do you?
Ms Mitchell KC: No, sorry, I was just hoping to restrict my answer. My Lady is dealing with a very tight –
Mr Alister Jack: Oh, sorry.
Ms Mitchell KC: – timescale and –
Mr Alister Jack: I’ll just say, the same with the vaccines, I ensured that vaccine distribution was fair for Scotland. They were stored centrally in England and available overnight – to be called overnight.
Ms Mitchell KC: I –
Mr Alister Jack: The same thing.
Ms Mitchell KC: I think the focus of my question was more really to address the question of whether or not the plan – and it was a plan which had already been produced by the Department of Health and Social Care, which was Whitehall-centric, that had already been done – was there a basis or do you think there is a basis for suggesting that in fact it was the right way to go for Scotland to simply say “We’re going to deal with this now from now on, get our own PPE and deal with distribution ourselves”?
Mr Alister Jack: No, because – because of the spike in prices and the purchasing power as one United Kingdom, I felt it was important that two things happened: one, the UK Government did the purchasing and hopefully got better prices; and – and secondly, that the UK Government bore the cost of that for the whole UK.
Ms Mitchell KC: Well, no doubt that will come to be examined in future –
Mr Alister Jack: Okay.
Ms Mitchell KC: – modules.
You have already indicated to my learned friend your involvement, as it were, in the Eat Out to Help Out scheme, and you mentioned involvement, I think, at the Covid-O meeting. Is that correct?
Can you give us any information on what was discussed in terms of the needs of and the impact on the people and business in Scotland, in particular in relation to Eat Out to Help Out scheme? The reason why I ask is everybody we’ve asked to date, almost every person has said that they were unaware of the scheme before the Treasury announced it. So it would be helpful if you’re able to give us some insight into what involvement you had in relation to Scotland –
Mr Alister Jack: Well, I – I was – I was at Cabinet when it was approved. I was keen that it was a UK-wide scheme. My personal position was it was – I was keen it was a UK-wide scheme because I wanted the Treasury to give support to hospitality businesses in Scotland, who I knew, from their communications with me, were struggling terribly.
As to the point about the Scottish Government being taken by surprise, I would have expected that Treasury officials were talking to Scottish Government officials about it and about the implementation of it, because these things can’t just happen without proper implementation and planning.
Ms Mitchell KC: In fairness, Mr Jack, I don’t think it was just the Scottish Government that was taken by surprise but senior members of the UK Government too.
Mr Alister Jack: Well, I – I mean, I am also surprised that officials were not talking to officials within the devolved administrations about the implementation of it.
Ms Mitchell: My Lady, those are my questions.
Lady Hallett: Thank you very much, Ms Mitchell.
Thank you very much, Mr Jack. I don’t think I’ll have to call on you again, but thank you for your help.
The Witness: Thank you very much.
(The witness withdrew)
Lady Hallett: Very well, we shall rise now and I shall return at 11.40, when we’ll hear closing submissions – would you like 11.45, Ms Mitchell?
Ms Mitchell: That might be helpful, my Lady.
Lady Hallett: It’s only an extra five minutes, but okay, 11.45. Thank you.
(11.23 am)
(A short break)
(11.45 am)
Lady Hallett: We now begin closing submissions.
For those who are following proceedings, just so they understand, the core participants can make closing submissions either orally or in writing or both, and now what’s going to happen is four core participants have chosen to make oral submissions, but they will be supplemented by their written submissions so they can just focus on the main highlights.
Ms Mitchell.
Submissions on Behalf of Scottish Covid Bereaved by Ms Mitchell KC
Ms Mitchell: I’m obliged, my Lady. I appear on behalf of the Scottish Covid Bereaved, as instructed by the Inquiries team at Aamer Anwar & Company.
At the outset of this module, Counsel to the Inquiry set out in stark terms the devastating impact of the pandemic on the people of Scotland, at this time, with the total number of Covid deaths reported in Scotland up to 31 March 2022 being 14,130. While it may be tempting for some to think that the days of Covid deaths are behind us, in the week ending 21 January 2024 there were 23 Covid deaths in Scotland. Many more, some with us here today, are suffering from the effects of Long Covid.
Whilst during the course of the pandemic some wanted “a good old fashioned rammy so they could think about something other than sick people”, the bereaved did not have that luxury. For those whose loved ones died in hospitals, in care homes or in prison, alone or surrounded by strangers in face masks and gowns, all they now have are their thoughts and their memories of their loved ones. They do not wish them to be just another statistic or another sick person. For the bereaved of course they were far more: mum, dad, partner, husband, wife, brother, sister, son, daughter.
It was in memory of those loved ones that the bereaved campaigned for a public inquiry, because they wanted answers. They did not campaign for this Inquiry to discuss WhatsApps and the minutiae of Scottish Government guidelines. It is a matter of deep regret for the bereaved that these important matters have been, through no fault of the Inquiry, overshadowed by the absence of WhatsApps.
Some of the best evidence in Module 2 came from informal communications, unguarded, contemporaneous messages which helped provide answers to the questions of what was happening in Whitehall and why. The actions of Nicola Sturgeon, Liz Lloyd, Jason Leitch, John Swinney and others have robbed the bereaved of those contemporaneous messages, and with them answers to questions.
The Scottish Covid Bereaved, like many Scots, tuned in almost religiously to Nicola Sturgeon’s daily Covid briefings. During the pandemic, many of us saw more of the First Minister and Professor Leitch than we did of our own families.
It was at one of these daily briefings that Nicola Sturgeon was asked if she could guarantee to the bereaved that she would disclose private emails and WhatsApps, that nothing would be off limits to a public inquiry. The SCB took her at her word.
The Scottish Covid Bereaved say that when Nicola Sturgeon told the Scottish public that she was prepared to give an assurance she would disclose messages that she knew she had deleted, this was not just a failing to be clear in an answer. It ought to have been made clear that she and other Scottish ministers routinely deleted important information relating to the pandemic, and that it was beyond the reach of Freedom of Information legislation and public inquiries.
My Lady, in concluding in relation to this issue, it’s hoped that those within the Scottish Government reflect on the fact that each minute this Inquiry spent at these hearings – very properly, of course – addressing the deletion of WhatsApp messages was a minute that could not have been spent exploring substantive matters, a minute that brought the bereaved no closer to the answers they seek.
These past three weeks have revealed, however much the Scottish Government may seek to differentiate itself from the UK Government, that many of the same mistakes were made in Edinburgh as were made in London: a failure to learn lessons from previous outbreaks; a failure to have a proper pandemic plan in place; a failure to have a proper testing regime, if indeed any ability to test; a failure to lock down in time; a failure to recognise the specific impact on health and social care sector; a failure to protect the most vulnerable; and a failure to properly consider the effect of their decisions taken on loved ones, for example, those unable to visit loved ones in hospital, and of course the effect of the transfer of vulnerable people into care homes.
In our closing submissions to the Inquiry in Module 2, the Scottish Covid Bereaved described the UK Government’s response from the period of 13 March 2020 to the issue of the stay-at-home order as being ten deadly days of delay. It was with disbelief that the Scottish Covid Bereaved learned that the dither and delay at the heart of the Scottish Government started long before then.
On 21 January 2020 Mark Woolhouse, professor of infectious disease epidemiology, contacted Dr Catherine Calderwood, the Scottish Government’s Chief Medical Officer. Professor Woolhouse was concerned about the emergence of a new virus. From round about January 10, 2020, he thought it was very likely that we would have a pandemic and thought the Scottish Government needed to quickly engage with it. Professor Woolhouse gave evidence of the warnings he gave to Dr Calderwood that the virus was completely different magnitude of the problem in swine flu, the risk of mortality among vulnerable patients, epidemiological modelling predicted at least half of the population would become infected, the gross mortality rate would triple and the health system would become completely overwhelmed.
On 26 January 2020 Professor Woolhouse sent a further email to Dr Calderwood setting out the non-pharmaceutical interventions required to deal with the situation. Despite these credible and dire warnings, there was a lack of urgency on the part of the Scottish Government. So frustrated was Professor Woolhouse that he had to email Dame Sally Davies, the UK Government’s former CMO, and ask her to get Dr Calderwood in effect to listen to him.
We can only wonder how many lives could have been saved if Professor Woolhouse’s warnings were taken seriously at the time.
The evidence led before the Inquiry has left the Scottish Covid Bereaved with a great many questions played(sic) about the part of Dr Calderwood and the information provided as the main conduit, as she was described, of information on medical matters to the then First Minister. This module is not whole without her evidence, and the SCB look forward to hearing her evidence in due course.
The Inquiry will have to consider whether the Scottish Government had the right advisers. During the pandemic, it was clear to anyone who turned on the TV or radio the extent to which First Minister was reliant upon the advice of the CMOs, Professor Smith and Professor Leitch. While these advisers had experience in public health, their backgrounds were in obstetrics, general practice and dentistry. Were they the right experts to help a government fight a deadly disease such as Covid-19?
From the evidence led, it appears that at least one expert did have direct access to the First Minister, Professor Sridhar. The SCBA thanked her for selflessly placing herself in the front line against the pandemic.
The Inquiry must turn its mind and consider whether time was spent wasted in pursuit of what may have been an unachievable strategy of zero Covid.
The deletion of WhatsApps as aforementioned are symptomatic of a wider culture within the Scottish Government, and that is one of secrecy. Whether in relation to the Nike conference or rugby internationals, the Scottish Government’s first instinct was to keep information from the people of Scotland. The Scottish Covid Bereaved will never know how and why decisions were made in relation to gold command meetings, they went unminuted, with no record of the discussions that took place at those meetings.
While the First Minister thought that there was undoubtedly a learning point for the Scottish Government, it ought have been obvious to ministers and civil servants that those meetings required to be minuted. The Scottish Covid Bereaved are left with simply a question: what is trying to be hidden?
Civil servants boasted of plausible deniability and putting messages beyond the reach of FOIs. The National Clinical Director gave the now First Minister a how-to guide on breaking the rules that the rest of us had to follow. The Scottish Government moved from a Cabinet system to a presidential one where decisions were being taken by a small number of people and rubber stamped.
This module deals with government but it did raise and touch on other issues, my Lady, and of course the Scottish Covid Bereaved are aware that further modules will deal with matters particularly in relation to the evidence of Dr Macaskill. But questions obviously posed and what the bereaved are keen to hear about are: were the risks of placing positive patients into care homes not obvious? Why was so little thought given to allowing families to be with their loved ones in their dying moments? In some instances, weeks went by where people went into hospitals, yet loved ones were denied access.
A question here is indeed whether or not their human rights, their right to family life, were breached, and my Lady may know that that’s already been considered elsewhere.
Rather than waiting for Downing Street to act, why was no thought given to how to use Scottish Parliament’s public health powers to protect our borders and slow the spread of the virus?
The Scottish Covid Bereaved will develop what has been said in our written submissions.
It’s clear to the Scottish Covid Bereaved that the evidence led has demonstrated that the Scottish Government was too slow to act, that despite their political and constitutional differences they fell into the slipstream of the UK Government and took clear steps to hide information from the people of Scotland.
The Scottish Covid Bereaved are not interested in arguments in relation to independence or unionism. They’re interested in finding out what decisions were taken in relation to their loved ones and whether different decisions ought to have been taken and what can be learned for future generations.
My Lady, the Scottish Covid Bereaved are tired of being in the middle of a political debate. They fight for those who lost their lives to Covid.
The Scottish Covid Bereaved hope the legacy of this Inquiry is that the Scottish Government will have in place a proper plan for dealing with the next pandemic when it arrives, and it is in that hope, my Lady, that the Scottish Covid Bereaved suggest a number of recommendations that relate to governance and infrastructure.
Now, my Lady, I’m going to mention a few of these, but it’s not to be taken in any order of preference or in any way a comprehensive list. The list goes on, my Lady, a lot longer than the 20 minutes allow, but I’ll give my Lady a few examples of things that have come forward in the evidence.
For example, as a result of the evidence of Professor Paul Cairney about the dissatisfaction of Audit Scotland, it must be possible to establish a system to account for funds from the UK Government spent by the Scottish Government. It ought not to be something that Audit Scotland indicates that they have difficulty following, so there must be some ability to put something in place.
In respect of what was said by Mr Macaskill, it appears that an urgent review of the systems, processes and governance of care homes in Scotland are required. Are they fit for purpose?
It of course would come as no surprise to my Lady that one of the suggestions is that Scotland has to have its own testing facility, maintained and ready to deal with scaling up, to have a draft written strategy on testing. My Lady will recall the somewhat surprising evidence that was described as an informal policy, and I think my Lady interjected to say that perhaps there hadn’t been one, that an informal unwritten policy was in fact not fit for purpose.
Of course, as said before, one of the recommendations the Scottish Covid Bereaved are keen to see implemented is a change to Scottish Government policy requiring retention of any electronic communications which relate to the business of government; and also for consideration to be given to change the FOI policies that are currently in place, because, as we heard in evidence, those are only required of civil servants, and it meant that each individual minister – with regards to whether or not they were obtempering guidance or not – decided whether to delete or not to delete their messages.
As suggested by expert witnesses McMenamin and Phin, it is suggested that the Scottish Government should consider having an overarching health protection structure to be put in place.
Further, as my Lady has heard, flowing through this and Module 2, recommendations in relation to the improvement of data, and particularly data as it applies to healthcare in relation to adult social care and care homes where there seemed to be a particular lack of information.
Sheila Rowan suggested – in perhaps more eloquent terms than we did at the end of Module 2 – that there should be a cross referencing of expertise. I think we called it, as lawyers sometimes do, hot tubbing; having experts from different areas come together to see how their ideas, if implemented, would affect other areas. She suggested a chief advisers group to get an overview and a crossover of policies to improve knowledge across the board, for there to be the CMO, the CSA, the Chief Scientist, the Chief Economist and Statistician, all to liaise together in a one body so that decisions taken could be tested on all those fronts rather than individual decisions being taken; and that, my Lady, could only assist in circumstances where politicians are being asked to balance harms if they have the experts to together looking at those matters and coming, if not with a concluded view, to have those different views expressed.
Another interesting feature of Scottish legislation and something the Scottish Covid Bereaved consider should be worthy of recommendations of review is a review of the made affirmative procedure, to consider a restriction on this to ensure that legislature that cuts across human rights can’t be made without parliamentary oversight and can’t be rolled over to avoid challenge.
Staying on the issue of legislation, my Lady, my Lady heard the evidence of the expert who agreed, I think, with my Lady’s propositions about the unintelligibility of legislation in respect of what people should do to not fall foul of the criminal law. Of course criminal law has to be Article 7 compliant; in a pandemic, of all times, people ought to be certain that they know what the law is and what behaviour is likely to breach it. Draft legislation could be drawn up in non-pandemic times and adapted, rather than have rushed legislation which was not comprehensible.
My Lady, further, the Scottish Covid Bereaved consider that a body should be set up, as with the UK Government, to oversee special advisers. The Scottish Covid Bereaved consider that the special advisers code is not sufficient for purpose, my Lady, to ensure that there is proper consideration given to the oversight of special advisers in the Scottish Government.
The Scottish Covid Bereaved consider that there ought to be a review of the Scottish Government personality. Its secrecy, my Lady, is out of step with what the public want. The public want transparency in government, and the FOI jokes show a government unwilling to be scrutinised; and it is clear, my Lady, with difficulties even on obtaining disclosure, that there must be a better focus placed on allowing people to understand the detail of what goes on. These are meetings on behalf of the Scottish people, for the Scottish people, and there’s no reason that there should be any secrecy in that regard.
My Lady, I’ll conclude, just within time, with two further suggestions.
Consideration of what was being described as pandemic budgeting agreement.
My Lady will have heard the evidence of Kate Forbes and the efforts that were made to assist in the problems of pandemic budgeting. It’s respectfully submitted that if such a body is put up in place, at this time, or a budgeting agreement is put in place to allow the flow of money in an easier way, that would be one of the most basic ways in which issues that don’t need to be problematic in a pandemic and don’t need to draw focus of time and effort could be dealt with in advance, in order that the focus can be placed simply on the virus.
Kate Forbes also mentioned that, in order to provide a proper system of governance, I suppose, it means proper investment in infrastructure of government, and she was clear that this should be done before the next pandemic and we shouldn’t be on the hoof trying to make up new systems when they were there.
Before the Scottish Covid Bereaved finalise our submissions in writing to you, my Lady, we wish to ensure that we’ve considered all the disclosure and we have also listened carefully today to the views expressed by other core participants.
My Lady, the Scottish Covid Bereaved are obliged to the Inquiry for coming to Scotland. Indeed, I think members of the Scottish Covid Bereaved have written on their own to express their thanks, not only, my Lady, to those at front of house, as it were, but those behind the scenes who have assisted what has been at times a very difficult experience for them in coming to hear evidence.
I conclude simply by saying that those are the submissions at this stage on behalf of the Scottish Covid Bereaved.
Lady Hallett: Thank you very much indeed, Ms Mitchell, and indeed we have received messages, and they’ve been very welcome and very touching. We’re very grateful.
Mr Friedman.
Submissions on Behalf of Disabled People’s Organisations by Mr Friedman KC
Mr Friedman: Thank you.
We act for Inclusion Scotland and Disability Rights UK; they are national organisations run by and for disabled people.
My Lady, where were the disabled people of Scotland in the pandemic disaster management system? The answer is that, whatever their recognition as citizens, their protection was not solid enough. The notion that no one should be left behind was effectively thwarted before the crisis started. That situation produced a chain reaction across all aspects of decision-making and government services, because everything that followed was reactive government, not proactive, and despite intentions not especially collaborative.
Three features of the overall system are worthy of note.
First, while health inequalities and their implications for disabled people were recognised in Scotland through human rights policy and public health doctrine, as Caroline Lamb accepted in Module 1 and as this module’s evidence makes clear, core pandemic planning and emergency systems encompassing health inequalities did not yet exist in 2020.
Second, in this overall lower income and less clinically robust part of the UK, Scotland knew its health limitations, and therefore government put its fear of people dying from Covid above all other harms. Indeed, Dr Smith’s position was that Scottish concern about Covid health risk was a matter of national cultural concern as much as clinical concern. We do not criticise that. But in the midst of an emergency, it was the concern that trumped all else. It meant that despite disabled people already being in a dire state of crisis pre-pandemic, and Scottish Government being aware of that, the impact of the NPIs on disabled people was not sufficiently mitigated.
Third, in Module 1 Nicola Sturgeon said that what she worried about literally every day during the pandemic was not so much that the government did not have a plan, but that Scotland did not have the underlying capabilities to discharge a plan.
My Lady has now studied the scenarios for approaching lockdown differently, especially Professor Woolhouse’s suggested approach of cocooning to protect the clinically vulnerable rather than a universal lockdown.
What these alternatives scenarios do not always take into account is the lack of infrastructure and services in Scotland, and in the whole UK, that prevented the state from acting differently. Taking disabled people as the stress tester for the idea, how can you create cocooned supershielding when you do not have the sufficient data, adequate engagement or proper support systems for those in care homes or those cared for at home to deliver such a strategy?
The proposed national care service would be the beginning of that capability, but in the summer of 2020, let alone the first six weeks of 2020, one-size lockdowns were as good as anywhere in the four nations of the UK could get.
What happened once Scotland had to plan and respond to a pandemic from scratch? In that assessment, it finds an important critical friend in Professor Cairney. Of the four harms policy and the general requirement to promote human rights and equality in the National Performance Frameworks, he asked rhetorically: who wouldn’t want a human rights approach? His criticism was that the detail of how government made choices about human rights is, to use his language, laudable, but what was far from visible is how the decisions were being made.
For disabled people, the answer requires unpacking. Human rights are part of the moral compass of the so-called Scottish model of government and style of politics. The situation is far more complicated in Westminster, where government often expresses itself as ambivalent about human rights issues. The quality of the conversation on disability rights was better in Scotland, as was the level of awareness of what needed to be done. However, Scotland did not show itself to be particularly progressive in the actual delivery of human rights. The Covid response investigation by the Scottish commission for human rights found that the government could have been better in mainstreaming and cascading human rights compliance across different areas of decision-making and delivery. The Scottish state is considerate in its value of rights, but not yet systematic or necessarily skilled in their implementation.
During the pandemic, the government had its four harms framework that conceptualised trade-offs between harms, but it did not from the outset create a discrete Covid plan for disabled people that anticipated and prevented hardship. There was no plan to cater for the foreseeable collapse in care, or to deal with food and other resource scarcity that befell those beyond and off the highest risk list. There was no plan to immediately obviate digital exclusion. To paraphrase Dr Jim Elder-Woodward, government did not prevent excessive utilitarianism in healthcare and/or social care provision, nor did it enroll the DPO as emergency co-responders as part of the plan.
Since devolution, Scotland has constructed a new machinery of government. How did those structures affect the ability of decision-makers to deliver on their human rights aims?
First, the Scottish model of government may be considerably more similar to Westminster than it wants to be, especially during crisis. Professor Cairney has broad observations to offer on this, but for the DPO there is much to be said that as a result of the lack of anticipatory and preventative planning, policy and infrastructure, government veered into centralised and top-down behaviour. This initially led to the relative disengagement from DPO compared to pre-pandemic collaboration; it also led to a number of witnesses being unsustainably positive about areas where Scottish Government was objectively weak, and certainly not significantly better than the rest of the UK. On this we include data in relation to disabled people and the overall quality of inclusive communications. Engagement with DPO for the purpose of co-production and co-design would never have led to such conclusions, or indeed such weaknesses.
Secondly, for disabled people it remains unclear how the Scottish directorate system led to their needs being freed from the general governmental tendency to silo and after-think on minority rights. Scotland, like the rest of the UK, also churns through ministers and civil servants, jeopardising institutional knowledge and continuity. The statement that “equality is the duty of everyone in Scottish Government” is all well and good, but especially in an emergency how does co-ordinated action for marginalised groups get done without being the function of a particular minister and lead group of civil servants? Christina McKelvie, as Minister for Older People and Equalities, could issue a memo to all government reminding it to comply with human rights and to leave no one behind in Covid decision-making, but there was no machinery to drive through a formal disability policy to ensure that Covid decision-making was actually governed by disability rights.
Thirdly, whatever the qualities of the relationship between central and local government in Scotland, it was not sufficiently developed to withstand a whole-system emergency, certainly no better than England. Not surprisingly, Nicola Dickie recognised on behalf of Scottish local authorities that partnership with the third sector lacked consistent coverage and could be variable. What is surprising is the repeated references in her statements without any criticism that most local authorities in self-assessments regarded themselves as ready to respond to the needs of vulnerable groups in an emergency, including disabled people. In March 2020, the Cabinet was far too sanguine that this would happen. Local government responders cannot be left to self-assess their own readiness in that way, not least because their optimism bias and states of denial can then become the optimism bias and denial of central government.
Turning to expertise.
The DPO do not take issue with the integrity of the advice or the degree to which pluralist views were shared about how best to suppress the virus. It was the lack of expert advice on mitigating NPIs that concerns them. The Chief Social Policy Adviser, Dr Carol Tannahill, whose role was to lead in government on the consideration of social harm, has admitted her sense that the capacity of the expert meetings to fully consider and understand the impacts on different population subgroups was less than ideal, and that more weight was placed on statistical modelling and biomedical science than on wider human experience and social science. Even when it came to creating subgroups, they were made for race and ethnicity, and children and young people in education, but not for disabled people, which of course echoes some of the prioritisation seen in Westminster.
Disabled people of Scotland therefore endured a pandemic paradox in that their situation was simultaneously recognised and overlooked by government, and in that respect the weakness of the Scottish model and style of politics is revealed. Government was good at speaking of “we” not “I”, at galvanising collective resilience, including civic connectedness; it empathised with disabled people, and articulated a social model that disability and vulnerability are both made and chosen. All of that is positive. But there was a gulf between aspiration and deed, and it was all the more experienced by disabled people because government’s actual decision-making was focused so highly on a medical orientated model of saving life, it was not particularly inventive or mitigated in its prevention of social harm.
Taking the quality of engagement with DPO as one indicator of this, there is a consensus in Scotland amongst politicians, civil servants and stakeholders that consultation is a good thing and that it is incumbent on government to build wide policy communities. Developed engagement with civil society is regarded as a Scottish political virtue, not just to enhance the social contract but to improve the quality of decision-making.
The granting of access, of having a meeting and remaining in a conversation is valuable, but that is not co-production and co-design. DPO are not equal partners in policymaking. Whilst there are exceptions, DPO are not generally informed about the consequences of their interventions. There are no feedback loops, agreed methodology or external review. As DPO do not have secured funding to do this, they cannot sustain their seat at the table even when it is given. Engagement, in Dr Elder-Woodward’s terms, is started and ended by the authority of the state. It is a gift without obligation or accountability, as opposed to a human right and a means to make delivery of protection more real.
As in the rest of the UK, there were serious shortcomings of data collection and deployment on behalf of disabled people in Scotland. The data infrastructure was minimal in 2020. Public Health Scotland still call it “a work in progress”. As a public health data specialist, Professor Morris, describes data collection as “still in the foothills” of where it needs to be and lacks a sufficient data infrastructure to create new insights, it is a defining feature of residential and domiciliary care of how little is known, how much people are not counted and consequently, whatever our aspirations, the uncounted count for less.
For disabled people, that exemplifies what was surely missed out on by the absence of co-production structures. When ground level community networks, local authorities and central government combine in the collection of data, that not only binds and builds trust, but it promotes insight.
Professor(?) Freeguard has talked about this in the conclusion to his report to you. Almost every lesson learned document has said the same. Pandemics teach us that data is absolutely an issue of human rights and humanity. Finding trustworthy and collaborative ways to know it and use it should become one of the great priorities of our time.
My Lady, in consequence of all these system weaknesses, levels of protection for disabled people in Scotland were simply not what they could or should have been.
You have the personal accounts from those on the impact video. Idrees told you, in his words, his world was turned upside-down.
Dr Elder-Woodward used the phrase “avalanche of issues” in the emails he wrote with increasing desperation.
The survey of 800 disabled people conducted by Inclusion Scotland across the month of April 2020 showed that 50.4% of respondents were no longer receiving health or care visits to the home, and that one in eight of them broke shielding rules out of necessity in order to acquire food or medicine.
Dr Elder-Woodward’s final point in evidence was that human rights mean nothing without social and economic rights. Recognition of disabled people as equal citizens will never be enough without redistribution.
On this, the Scottish Government points to an anomaly of devolution. In its current form, Scottish Government is responsible for public health but, due to lack of UK Government funding, was unable to fund large structural responses to Covid; not just prolonged furlough, but paying the care sector workforce a sufficient sum not to work, or substantially raising carers’ allowance including the capacity to pay for temporary carers to step in when the voluntary carers caught Covid.
However, the Scottish commission on human rights and the Feeley commission on social care have both made it clear that Scottish Government must be disciplined to find ways to secure social and economic rights, to the extent that it has the power.
For instance, there is a human rights method to co-produce and co-design the way that budgets are made and spent. At the early stages of Covid, Scottish Government announced the £350 million that would be made available to support depleted local services. Similarly, £100 million was released to councils to stop social care from being withdrawn or reduced. Obviously these are important sums, but the money was not accompanied by sufficiently detailed programmes of how to channel it to the harder to reach, and how to transparently audit its effectiveness. It was not designed with and for DPO and disabled people, who would know how to do that. Its result was not as sufficiently redistributive or effective as it could have been.
My Lady, where does that then leave us, midway in your journey across this country’s four nations of Covid government response? In the Westminster module to this Inquiry, the DPO challenged the extent to which the UK state ignored their rights. Now in this module they challenge the extent to which the devolved aspect of the state in Scotland has failed to deliver on their rights, despite wanting to do so. Declaring that government cares about human rights, which is indeed the case in Scotland, is not enough.
These governors in Scotland must therefore, we say with respect, acquire the competence and the systems to deliver on their values. The DPO see full incorporation of the UNCRPD as a means to institutionalise their rights more formally, and for government to learn to better respect human rights. To return to Professor Cairney’s critique, justiciable rights are one of the means that ensure that words become deeds.
But what of this suggestion that human rights will never be enough without social and economic rights, that the woes of Covid governance essentially come down to economic determinism, that there has been a failure of the dominant free market philosophies in the wealthier western nations to protect the poorer parts of their populations?
My Lady, we are in the nation of Adam Smith, and the city that many in this room would tell you is the birthplace of the enlightenment. Smith may be famous for extolling the virtues of the invisible hand of the free markets in his The Wealth of Nations, but his earlier book on morals, The Theory of Moral Sentiments published in 1759, has something to say about the ethics of care as the source of both a good life and good governance. He told his 18th century audience that the secret of happiness was to be loved and to be lovely. Broadly translated into modern language, that accords with a submission we have already made to you, that the principal value of good government should be to care
about caring and being cared for, and that we should
favour such politics, economics and systems that sustain
that way of relating to one another.
The evidence in this Inquiry lays bare that the
pandemic and its countermeasures were wretchedly unjust.
So, as you continue your journey, we ask you to keep
thinking about how we all are vulnerable to some degree
at some time, that the capacity to care is at least as
fundamental to what it means to be human as the capacity to reason.
And so, to do justice to the unequal harms of Covid, this Inquiry, along with the public it serves, must find ways to enable the ethics and practice of mutual care to become both more possible and more sustainable.
Lady Hallett: Thank you very much indeed, Mr Friedman, very grateful.
I think it’s Mr Phillips next.
Submissions on Behalf of the National Police Chiefs’ Council by Mr Phillips KC
Mr Phillips: My Lady, by this time you’ll be more than familiar with the roles and function of the NPCC, and there is, I think, no need for me to remind you of any of that. And you know too that in this module it represents the interests of the Police Service of Scotland, which again I’ll refer to as Police Scotland, And finally you know that, as I predicted in my opening submissions, policing has played a very minor part in the evidence which you’ve heard here in the last weeks.
So in these brief closing submissions, I’d like to highlight some of the themes which have emerged from that evidence. But before that, if I may, may I just make some points by way of context.
The first is that, of course, most of the challenges faced by policing during the pandemic had to be faced by the police throughout the UK. So the experience of Police Scotland mirrors, to a very large extent, the experience of the English forces which you heard about in Module 2, and which will no doubt be repeated in what you hear in the next two modules.
My Lady, that leads to my next general point, which is that the work of the police in Scotland and elsewhere during that pandemic encompassed far more than the question of the enforcement of the coronavirus regulations, which features as a sub-issue on your list of issues in this module, as it did in Module 2.
Normal policing activity had to carry on, so far as possible, despite the difficult conditions, and of course police leaders knew that it would continue to carry on once the pandemic came to an end, whenever that was. Which takes me to my final general point which, in my submission, has to be borne in mind when considering all questions concerning policing during the pandemic, and it’s that in this country we have policing by consent.
In the specific context of the Covid regulations in which the police found themselves in the unfamiliar territory of public health policing, the formidable task faced here in Scotland, as in every part of the UK, was to encourage the public to comply with the regulations whilst also retaining their trust.
So turning, then, to the evidence about policing which you’ve heard in this module, I’d like to start, if I may, with the NPCC’s four Es guidance, which was adopted at the start of the pandemic by Police Scotland and from which, as you’ve heard, the police never wavered during the various stages of the crisis.
Underpinning that guidance was the same fundamental principle of policing by consent. The aim of the guidance was compliance and not enforcement, which was and remained the last resort.
The statistics which you’ve heard in the evidence suggest that the guidance was effective and successful in achieving that aim. And here we are on firm ground because of the CVI system, which was established by Police Scotland in the early days of the pandemic, with great foresight if I may say so, and which recorded all encounters between the police and the public in relation to the regulations, ie each of the four Es. And the data generated as a result shows that the vast majority of encounters were resolved before the fourth E, enforcement, was reached.
The police’s figures, which may indeed be conservative, suggest that 88% of such encounters were resolved short of enforcement, and you heard the current First Minister say that the figure might be as high as 94%.
My Lady, it follows from this that when considering the evidence concerning fixed penalty notices given by non-police witnesses last week, you’re concerned with a tiny minority of the occasions on which the police interacted with the public in relation to the regulations, and that means in turn that all of the statistical analysis subsequently produced in which the total number of FPNs has been broken down by reference to certain categories of recipient, is itself concerned with small percentages of that small minority of cases.
Now, this academic and analytical effort was of course only made possible because Police Scotland provided the data in a way which was, I’d suggest, consistent with the open and transparent approach which they took to their work throughout the course of the pandemic.
There’s perhaps no better example of that approach, you may think, that the independent Advisory Group on Police Use of Temporary Powers, the IAG, about which you’ve heard in evidence.
It was established early on in order to assist the police in the difficult task they faced in dealing with these novel and often changing regulations, and to give assurance to the public via the Police Authority to which it reported. It met regularly during the pandemic under distinguished and independent leadership. Its membership, as you’ve heard, was varied and expert. And Police Scotland were able to draw on its work as the pandemic continued and, as I noted in my opening submissions, they also set up an extensive lesson learning exercise so that best practice could be identified and any necessary changes implemented in a process which continued after the crisis had passed.
My Lady, we’ll put in detailed written submissions next month, but at this stage, and having drawn out some of the main themes of the evidence you’ve heard here, my submission to you is that Police Scotland are to be commended and not criticised for the way in which they met the challenge they faced during the pandemic.
Lady Hallett: Thank you very much indeed, Mr Phillips.
Mr Mitchell, I think you complete the submissions.
Submissions on Behalf of Scottish Ministers by Mr Mitchell KC
Mr Mitchell: Thank you, my Lady. These are the oral submissions on behalf of the Scottish Government.
To begin where this module began, three weeks ago, with the impact film, the poignant testimonies, together with the evidence of Jane Morrison, all of whom spoke with palpable love for those whom they had lost, could not fail to move, nor could anyone have but the greatest sympathy for those who suffered and suffer today from Long Covid or mental health issues as a result of this virus.
Their participation in the film and their evidence showed a bravery that an onlooker may not fully understand and that perhaps we who appear regularly in courtrooms across the country do not always appreciate or come to take for granted.
It is of course by continuing to speak of the people we have lost that we keep their memories fresh and alive, so on behalf of the Scottish Government we pay tribute to the representatives of Scottish Covid Bereaved who have attended these hearings over the last three weeks. We also pass our deep sympathies and condolences to the others, the many thousands who have lost loved ones, who have suffered and who continue to suffer.
What more can the Scottish Government do than offer its sympathies? Well, it can learn. The Scottish Government does listen, it does learn, and it does adapt. Throughout the pandemic, the Scottish Government’s prime focus and intention was to protect the public, the people of Scotland, as best it could from the harms of the disease. The Scottish Government acknowledges that it did not get everything right. Where there were missteps, it deeply regrets them. Decisions were taken in good faith. Some, and acknowledging the limitations of a hindsight judgement, would be taken differently today.
It is important to remember, as we have heard many times, that there was no single simple and certain way to respond. The very fact that so many different views have been expressed on the steps and measures taken, so many different opinions on what should or should not have been done by the Scottish Government and the other governments of the four nations surely demonstrates this very point.
In this oral closing statement, the Scottish Government revisits the themes that it set out in its opening statement, and makes a number of observations on the evidence that has been heard, which it ties in with the themes that were identified by Mr Dawson on Day 1 of the module. It does so in order constructively to assist the Inquiry in making recommendations, which will help a future Scottish Government in responding to the next global health emergency. A fully considered written statement will be provided to the Inquiry by 23 February.
So the first theme that we looked at in the opening statement was the period January to March 2020. Ministers recognised that a great deal of evidence has been led in respect of the timing of the first intervention to stop the spread of the virus. Knowing what is known now, Scottish Ministers would have wished to move faster in March 2020 in issuing a stay-at-home instruction. The evidence before the Inquiry shows that the medical and scientific advice which the Scottish Ministers had access to came through the UK’s scientific advisory structures, principally by way of the COBR briefings. That scientific advice did not recommend lockdown until very shortly before that decision was made.
In the context of a lockdown by Scotland, independent of the rest of the United Kingdom, financial support and incentives for employers and workers would have been essential. So, practical financial considerations would have remained.
However, linked to this and an issue which may merit consideration, is how devolved governments can have the conditions in place to provide the flexibility and the real ability to respond to a future pandemic in a way that suits the particular demographics of that country. In practical terms, if the Scottish Government felt compelled to put in place a stay-at-home requirement in a future pandemic, how would the UK-held funding and administrative capacity for essential supporting features such as furlough be guaranteed?
There were many distressing situations that were caused by the virus and the measures taken to limit its spread. The situation specific to care homes caused both by the virus and by the measures taken to limit the spread was captured in the evidence of Dr McMenamin and Professor Phin. The dilemma facing decision-makers was set out in the evidence of Ms Jeane Freeman. I do not repeat that here, except to note the point that studies such as the PHS report on discharges to care homes referred to by Professor Phin showed that discharge from hospitals was not the driving factor in care home outbreaks in Scotland. Care home size was much more strongly associated with the risk of an outbreak than all other care home characteristics, including hospital discharge.
Nonetheless, the lessons of having a testing infrastructure in place and the need to prioritise some of the most vulnerable in our society are there for all to see.
The second theme that we looked at in the opening statement was leadership, the underpinning structures and decision-making. It is no part of our submission to say that every decision taken by Ministers was correct, but we invite the Inquiry to accept that Ministers took their decision-making duty seriously. We do not believe that there is evidence that could contradict that.
The evidence also showed that they put in place structures and systems to give them access to extensive and integrated expert advice, all to support rapid decision-making.
Important decisions were taken at Cabinet, unless Cabinet took the view that it was proper to delegate that responsibility to the First Minister or to the Deputy First Minister. The ultimate – structures were put in place to ensure that Ministers, as the ultimate decision-makers, received those balancing factors and that due weight was paid to all of them.
Evidence of Cabinet decision-making and the rationale behind and supporting those decisions is contained in the many detailed Cabinet papers which the Inquiry has. The Scottish Ministers would welcome the Inquiry’s consideration of these. They identify when decisions were taken and the supporting information that Ministers had access to. We will set out the INQ numbers for these Cabinet papers and the related material when we come to submit our written submission.
In relation to informal messaging it is undeniable that the messages show people working together constructively and intensely at all hours of the day and night to support Ministers in their decision-making. Further, as Lesley Fraser pointed out, it would in practice be near impossible for a decision to be carried out by or on behalf of government without evidence of that appearing in formal records.
The Inquiry has material before it which will enable it to ascertain whether the decisions carried out by the Scottish Government are those recorded in its formal systems.
In compliance with legislation, policies and plans on document retention and management have been in place for several years. As Lesley Fraser explained, it is taken very seriously. The requirement to transfer the salient points of any business discussion and/or decision to the formal records system is set out. The chief difficulty appears to have been that not all individuals followed it or there was inconsistent interpretation of its meaning.
It is right and proper that the Scottish Government acknowledges both the Inquiry’s and the public’s consternation with regard to informal messaging use during the pandemic. It is clear to the Scottish Government that it must learn lessons in this area. And as the First Minister said in evidence last week, an external review has been commissioned.
The third theme that we looked at in the opening statement was the Scottish Government’s strategies and decisions during the pandemic. As this Inquiry has recognised, by the very existence of Modules 2A, 2B and 2C, devolved governments are responsible for a large portion of the pandemic response across three of the four nations of the UK. The Scottish Ministers not only had the powers to take the decisions they did in the pandemic, but they had the duty to exercise these powers and to reach decisions on the basis of the facts and circumstances in Scotland. Often those facts and circumstances were different from those prevailing in other parts of the UK. That approach was significantly different from that of the UK Government for England for good reason and not for the sake simply of being different.
The Scottish Government did not pursue a zero Covid policy – which, as we heard from the former First Minister yesterday, was not meant literally – to the exclusion of consideration of the harm that that would do to the economy and society, including disproportionate harm to those who experienced inequalities. Nor, in late 2020 and early 2021, did it make the same mistakes twice. Rather, it anticipated the potential for a second wave and put in a carefully thought through set of NPIs drawing on experience of earlier in the pandemic.
Nor, later in 2021, did it simply give up. It put in place a strong NPI response, but its options were constrained by the funding of the furlough scheme. More generally, the Scottish Ministers sought to suppress the virus to a very low level while minimising broader harms. In the autumn of 2020, for example, therefore, Ministers had to consider both the need for more stringent actions to suppress the second wave and the additional harm that stringent action would entail, including to those who felt these effects most keenly.
Similarly, in the autumn and winter of 2021, facing still more infectious variants but also beginning to see the effects of the vaccines in weakening the link between infections and deaths, Ministers had to consider all four harms and not solely the pressures faced by hospitals, significant though these were, while they set out their strategy. As Professor Sir Gregor Smith, the Chief Medical Officer, noted in his evidence, we should bear in mind that risk is dynamic, it altered over time influenced by therapeutics and the vaccine which came into play at about that point, thus the balance of harms had changed and with it the proportionality of certain measures.
Outcomes were also different, as the Module 2 evidence of Sir Ian Diamond, chief executive of the UK Statistics Authority, showed. In particular, age-standardised mortality rates, or ASMRs, take account of differences in population size and age structure, and therefore allow comparisons to be made between the four nations in a way that other mortality outcomes data do not. A macabre statistic, but Sir Ian’s evidence showed that over the period March 2020 to February 2022, Scotland had the lowest age-standardised mortality rates for deaths involving Covid-19 of the four nations, at 124.9 per 100,000 people compared to a rate of 145 per 100,000 people for England, not a statistic to be trumpeted but prima facie evidence that outcomes were different.
Ministers were aware throughout the pandemic of their duties under equalities legislation and of the importance of impact assessments to decision-making. But the decisions taken in relation to inequalities were, as with all decisions during the pandemic, not easy. The Scottish Ministers recognise that the interventions to limit the spread of Covid-19 themselves caused harm, exacerbated inequalities and disproportionately affected the most vulnerable people in Scotland. Ministers sought to consider the full range of impacts of those interventions and to ensure that they were necessary and proportionate. Ministers sought to minimise the harm experienced by everyone in society, and especially those at greater risk of harm, not only from the virus but from the isolation, reduced access to care and support, and other impacts of suppression measures.
But the Scottish Government recognises that, pandemic or no pandemic, more has to be done for the most vulnerable in society, as was made clear in the evidence of Dr Donald Macaskill of Scottish Care and Dr Jim Elder-Woodward.
The fourth theme that we looked at in the opening statement was working with other governments and local authorities. The Scottish Government recognises that the best way to work with partners and stakeholders in a crisis is to invest in constructive, effective relationships in calmer times and to listen and engage with those close to local communities.
We acknowledge the evidence of the STUC and COSLA that the Scottish Government went to lengths to engage with employees and local authorities while accepting that the intensity of the emergency affected both the amount and the quality of the engagement that was possible.
It is, we think, fair to say that a recurring theme of governmental exchanges was the concern of the devolved governments that decisions on funding and the furlough scheme were driven by the UK Government’s decisions for England.
We have already set out that we consider that matters in the gift of the UK Government, such as flexibility in funding arrangements for devolved administrations in emergencies and for schemes such as furlough, may warrant a particular focus.
Ministers are also clear that in a future pandemic devolved governments ought to be true partners in situations where decisions taken at a UK level affect devolved responsibilities.
That aside, the Scottish Government wishes to place on record its thanks and appreciation for the work of those in all four governments and of scientists, academics and clinicians more generally from across the UK who worked together to share data and expertise in order to understand and suppress the virus.
The fifth theme that we looked at in our opening statement was data. When this pandemic initially came to our shores, there were limited data available. Public Health Scotland and the Scottish Government worked at pace and under great pressure to draw data together in order to provide ministers with the information they required to take informed decisions. We note the Public Health Scotland dashboard is one example of this. Evidence has shown that at times access to data was not as timely and straightforward as it could be. The need for further improvements to UK and Scottish data infrastructure and the processes in place to access data were identified and the Inquiry may wish to highlight the need for this work to continue at pace.
The sixth and final theme that we looked at in our opening statement was public communications. No decision or action by government can be effective if not effectively communicated, whether in relation to adherence with NPIs or persuading people to come forward for initial, second and booster doses of vaccine.
Professor Reicher gave supportive evidence of the way in which the former First Minister delivered her public messages. Trust in the government’s messages remained high and citizens undertook significant sacrifices as part of the national effort to limit the spread of the virus.
My Lady, those are our overall submissions, which we will supplement in writing, but before I sit down, certain thanks are due.
On behalf of the Scottish Government, I take this opportunity to thank you and your team for coming to Scotland, for your hard work in delivering this module, but of course the module could not have been run without the support of the staff, the ushers, the managers, the witness support staff and the technicians from RTS, and we thank them for their assistance to us over the past few weeks. We thank the witnesses who gave of their time to come to give evidence. We thank the many Scottish Government employees, the partners, including the other three governments of the UK, and the stakeholders, who worked tirelessly to steer Scotland through the pandemic. And most of all we thank the people of Scotland for their trust, forbearance, co-operation and fortitude during a very difficult and at times very dark period in our nation’s history.
Thank you.
Lady Hallett: Thank you, Mr Mitchell.
Mr Dawson. Closing remarks by LEAD COUNSEL TO THE INQUIRY for MODULE 2A
Mr Dawson: My Lady, I have some very brief closing remarks.
First of all, a clarification.
Yesterday during the evidence of Ms Sturgeon she was taken to a document, INQ000292564. It might help if we can have that put up. This was, you will recall, my Lady, an email chain beginning on 19 July.
We can see on page 6 an email that – which indicates that the Deputy First Minister, Mr Swinney, had requested a call to discuss international travel and that the then First Minister was copied into this chain.
We then looked at another email connected to this subject on page 5. This email reads, as your Ladyship will recall:
“It won’t matter how much ministers might justify it on health grounds, the Spanish Government will conclude it is entirely political; they won’t forget; there is a real possibility they will never approve EU membership for an independent Scotland as a result.”
I can clarify that this particular email was sent to Ken Thomson, the director-general for constitutional and external affairs, from a Scott Wightman, the director for external affairs, both civil servants, and not Mr Swinney or his office.
With your permission, the Inquiry has already adduced in evidence and published a number of documents through the course of these hearings. In short, this comprises pages of documents brought up on the screen during the hearings, and the statements of witnesses who have given oral evidence.
As with previous modules, we expect you will inevitably wish to have in evidence a wider body of material than this for the purposes of writing your report. The M2A team have provisionally identified a list of additional documents which we will seek your permission to adduce.
These include around 114 statements of witnesses who have not given oral evidence, but whose statements you may wish to rely upon when compiling your report. We propose to circulate a list of these documents to core participants, so they have an opportunity to review it and either object to or propose additional documents for inclusion on the list.
Thereafter, with your permission, the Inquiry will adduce in evidence and publish the documents set out in the final list of materials on the Inquiry’s website.
If your Ladyship will indulge me for one further moment, may I also please pay tribute to all of the members of the Inquiry team, who have worked tirelessly in playing their part in the conduct of these important hearings for the people of Scotland. They all have my thanks for their work and their dedication in conducting it despite, in the case of those who journeyed north, the cold, both outside and at times inside this building.
In particular, may I express publicly my thanks to the paralegals, the solicitor team, and my learned juniors, Mr Tariq, Mrs Arlidge, Ms Condron, Ms Painter and Mr McWhirter. All members of the legal team have given their all in the delivery of these evidential sessions. We hope that those who have lost loved ones in the Covid-19 pandemic, and those who have otherwise been harmed by the virus or the countermeasures taken by government to fight it, agree. They deserve no less than our very best.
Closing Remarks by the Chair
Lady Hallett: Thank you very much indeed, Mr Dawson, I’m very grateful.
That completes the evidence and the oral submissions in this Module 2A. The team and I will now consider all the material, the written material already published, the written material to which Mr Dawson has just referred, and of course the oral evidence and the oral submissions.
We will begin drafting the report that will be published as soon as reasonably possible. The entire Inquiry team know of my determination to make my findings and any recommendations public as soon as possible, and we will do that, and we will work hard. I think the ability to work hard by the Inquiry team has been proved by the efforts of the Module 2A team, but I’m sure, as everybody will understand, we must do it properly. So we’ll get it out as soon as we can, but we will do it properly.
I’m glad that we were able to bring the UK Inquiry to Scotland, even if I was accused by one politician of taking my rock band on tour. The clue is in the name, it’s the UK Covid Inquiry, and that’s why it was important for us to bring the Inquiry to Scotland.
I too would like to thank the people Mr Dawson has thanked and Mr Mitchell has thanked.
I’d like to thank the people of Scotland for the warmth of their welcome, if not, as Mr Dawson mentioned, the warmth of the weather and sometimes, as he said, the warmth of this building.
I would also like to thank the witnesses for their co-operation, some of whom I’ve imposed on more than once in this Inquiry; the Inquiry team for their extraordinary industry; the core participants for their very considerable help; the technical team, who have done an amazing job; the staff here at the Edinburgh International Conference Centre; and of course the members of the public who have followed us here in person – I think we’ve got at least one person who has been with us throughout. There may be more. I’m sorry if I hadn’t spotted you. Many of you have been here an awful lot – and those who followed online.
Without the help of so many of you, we could not have completed these hearings on time, and I do know considerable effort has gone into everything that’s been done; and in my view this Inquiry team, with the help of the people I’ve mentioned, have I hope produced the kind of results that the people of Scotland would have wanted.
So that completes this module.
The next substantive hearings of the Inquiry, the Covid Inquiry UK, will be in Cardiff on 27 February for Module 2B, where we shall be considering key decision-making in Wales.
So thank you, everybody.
(12.58 pm)
(The hearing concluded)